G.G. v. Image Printing and Signs, 2010 HRTO 1953

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

G.G.

Applicant

-and-

Image Printing and Signs (1489024 Ontario Ltd.) and Noel Elias

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: September 24, 2010

Citation: 2010 HRTO 1953

Indexed as: G.G. v. Image Printing and Signs

1This is an Application filed on July 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to deal with two outstanding Requests for Order During Proceeding, one seeking to add Noel Elias as a personal respondent and the other seeking deferral of the Application pending completion of a related criminal trial.

Adding Personal Respondent

2The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that 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?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

3In the present case, the Application involves the allegation that the proposed respondent, who was the owner of the respondent company, subjected her to sexual harassment. The alleged facts, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code.

4The individual conduct of the proposed respondent is the central issue in the Application and there is no apparent prejudice to any party in adding the proposed respondent as Mr. Elias, as the owner of the respondent company, has been aware of the proceedings from the outset. In the circumstances, it appears that it would be appropriate to add the proposed individual respondent as a party to the proceedings. The applicant’s Request for Order is granted and the style of cause is amended accordingly.

5The individual respondent shall be provided with a copy of the Application, the corporate respondent’s Response and the applicant’s Reply, along with a copy of this Interim Decision, and is directed to file, not later than 35 days after a copy of the Application is sent, any additional Response to the Application (in Form 2) or correspondence confirming that he intends to rely on the Form 2 already filed on behalf of the respondent company.

Deferral of the Application Pending Criminal Trial

6The response filed by the respondent company seeks to have the Application deferred pending the criminal trial involving the owner of the company, Noel Elias.

7The applicant requests the Tribunal not defer the Application. She argues that she is not a party in the criminal matter and that process will not address the human rights issues or provide human rights remedies. She refers to the Tribunal’s decision in Martinez v. Peel Police Services Board, 2008 HRTO 434.

8In all the circumstances, it appears to the Tribunal that it may be appropriate to defer consideration of the Application, pending completion of the criminal proceeding involving the personal respondent, Noel Elias.

9The Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party (Rule 14.1). Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10The Tribunal has deferred applications where there are ongoing criminal proceedings involving the parties, where the applicant or the respondent was the party who was criminally charged. See Miller v. Bernard, 2010 HRTO 1488, Bernard v. London Transit Commission, 2010 HRTO 1829 and Hadley v. J.A.C.S. Cartage, 2010 HRTO 516.

11In this Application, the personal respondent is criminally charged with respect to the same incidents that form the substance of this Application. Both matters concern the events that are alleged to have taken place on June 6, 2009. The latest update to the Tribunal indicates that the criminal trial is scheduled to take place in December, 2010.

12Accordingly, the Tribunal orders the deferral of the Application until conclusion of the criminal proceeding against the personal respondent. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the process by which the Application may be brought back on before the Tribunal after the criminal proceeding has concluded.

13I am not seized.