Jean McAllister v. 2189170 Ontario Inc. o/a the Red Papaya, 2010 HRTO 1339

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean McAllister

Applicant

-and-

2189170 Ontario Inc. o/a the Red Papaya

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 11, 2010

Citation: 2010 HRTO 1339

Indexed as: McAllister v. 2189170 Ontario

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on December 9, 2009 alleging discrimination in employment on the basis of sex and age during an employment interview at the Red Papaya restaurant located at 84 or 86 Gordon Street in Guelph.

2The Tribunal issued the Application to 2109461 Ontario Inc. o/a Red Papaya Restaurant (“2109461 Ontario Inc.”) and Liang Jia Enterprises Ltd. o/a Red Papaya (“Liang Jia Enterprises”). Both respondents contacted the Tribunal to advise that they do not operate a restaurant at this Guelph location.

3On April 30, 2010 the applicant filed a Request for Order During Proceedings in which she requested that the respondents be removed as respondents and that another party, 2189170 Ontario Inc. o/a the Red Papaya (“2189170 Ontario Inc.”) be added as a respondent. The applicant submits that she has now undertaken a corporate search and it appears that 2189170 Ontario Inc. is the proper respondent as it is the company which operates the restaurant at 86 Gordon Street in Guelph. 2109461 Ontario Inc., Liang Jia Enterprises and 218917 Ontario Inc. have not filed a Response to a Request for Order During Proceedings and the time for doing has now passed.

4Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”.

5In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the factors to be considered when determining a request to add a respondent. They are:

(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?

6Applying the test to the circumstances in this case, I will assume, without deciding, that there are allegations that could support a finding against the proposed respondent 2189170 Ontario Inc. since the allegations are about the alleged discrimination that took place at the restaurant. 2189170 Ontario Inc. is added as a respondent and the style of cause is amended accordingly. 2109461 Ontario Inc. and Liang Jia Enterprises are removed as respondents and the style of cause is amended accordingly.

7The respondent 2189170 Ontario Inc. shall be provided with a copy of the Application and this Interim Decision and is directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of the Application is sent.

8I am not seized.