Human Rights Tribunal of Ontario
Between:
Michelle Viney Applicant
-and-
Volkswagen Group of Canada Inc., VW Credit Canada Inc. and Donald McQuirter Respondents
Interim Decision
Adjudicator: Naomi Overend Date: June 9, 2010 Citation: 2010 HRTO 1309 Indexed as: Viney v. Volkswagen Group of Canada
1This Interim Decision deals with the applicant’s two Requests for Order During Proceedings (RFOP) to (1) add a respondent to her Application; and (2) amend her Application to challenge the constitutional validity of ss.24(1)(d) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant filed her Application on April 23, 2009 under s. 34 of the Code, alleging discrimination in employment on the basis of marital status, family status, association and reprisal by the respondents Volkswagen Group of Canada Inc (“Volkswagen Canada”) and Donald McQuirter.
Request to Add a Respondent
2In the body of her Application, the applicant refers to a number of competitions in which she has applied and not been successful. It is her position that she has not been the successful candidate in some or all of these positions because of the application of an anti-nepotism policy. Her husband is employed by the named organizational respondent Volkswagen Canada.
3The applicant is employed by VW Credit Canada Inc. (“VW Credit”), and some of the positions she applied for were also within VW Credit. Unbeknownst to the applicant and her counsel, VW Credit and Volkswagen Canada are two separate corporate entities, a fact that was made clear in Volkswagen Canada’s Response. Once she became aware of this fact, the applicant brought a RFOP to add VW Credit. VW Credit retained separate counsel and filed a Response to the RFOP in opposition to the proposed addition.
4The test for adding respondents has been articulated at paragraph 12 in the recent decision, *Smyth v. Toronto Police Services Board*, 2009 HRTO 1513.
When determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
5In its Response to the RFOP, VW Credit asserts that as a separate legal entity, it did not apply its anti-nepotism policy to the consideration of the applicant for the positions to which she applied. The applicant’s submissions in reply to VW Credit’s Response argue that there is an integration of services between the two corporate entities and that there is a potential overlap and possible application of the unwritten anti-nepotism policy with respect to the two VW Credit positions she applied for. Moreover, she asserts that she has experienced unfavourable treatment by her employer, VW Credit, following her challenge to the anti-nepotism policies.
6VW Credit also submits that it should not be subject to an Application because the applicant’s RFOP was submitted more than a year after the competitions in question. In fact, the timing is not clear as VW Credit states that it named the successful candidates in “early October” 2008 and the applicant brought the RFOP on October 9, 2009. If more than a year elapsed, it was just barely over a year. In any event, the delay provisions in the Code relate to bringing applications, not making amendments to them. VW Credit does not point to any prejudice it would suffer such as to engage the third element of the Smyth test set out above.
7Accordingly, I order that VW Credit be added as a respondent to this Application and the style of cause be amended to include its name.
Request to Amend
8The applicant wishes to amend her Application to question the constitutional validity and applicability of ss. 24(1)(d) of the Code, which provides:
- (1) The right under section 5 to equal treatment with respect to employment is not infringed where,
…
(d) an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee
9The respondents, Volkswagen Canada and Donald McQuirter, have indicated that they will be relying on the above defence. The applicant takes the position that this defence infringes s.15(1) of the Charter and seeks a declaration under s. 24 of the Charter that the offending provision of the Code is of no force and effect.
10However, the Tribunal is not a court of competent jurisdiction and so does not have the authority under s. 24(1) of the Charter to make such general declarations. This is not to say that the Tribunal is without the authority to make specific declarations of invalidity. Relying on the Supreme Court of Canada’s decision in *Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur*, 2003 SCC 54, [2003] 2 S.C.R. 504, this Tribunal in [Arzem v. Ontario (Community and Social Services), 2006 HRTO 17](https://www.canlii.org/en/on/onhrt/doc/2006/