HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Vanessa Gyles
Applicant
-and-
2212088 Ontario Inc. dba Edible Arrangements – Store #1107, Ramandeep Shina and Colleen Kehl
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Gyles v. 2212088 Ontario
WRITTEN SUBMISSIONS BY
Vanessa Gyles, Applicant ) Glen Morrison, Representative
INTRODUCTION
1The purpose of this Interim Decision is to address the applicant’s Request to amend the Application.
BACKGROUND
2On May 10, 2010, the applicant, who self-identifies as a Black female of Caribbean origin, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which named Edible Arrangements Inc., Ramandeep Shina and Colleen Kehl as respondents, and alleged that they had discriminated against her with respect to employment because of her race, colour and place of origin.
3Specifically, the applicant, who was employed in an Edible Arrangements store owned by Ms. Shina, alleged that Ms. Kehl, who is the owner of another Edible Arrangements store, made racist comments to her on the telephone, and after she objected to the comments, Ms. Shina terminated her employment.
4Edible Arrangments Inc. is the franchisor of the stores owned by Ms. Shina and Ms. Kehl.
5On June 23, 2010, the Tribunal served the Application on the respondents.
6On July 16, 2010, the applicant filed a Request for an Order during Proceedings, which requested that the Application be amended. Specifically, the applicant requested that 2212088 Ontario Inc. dba Edible Arrangements – Store #1107 (“Store #1107”), which is owned by Ms. Shina, be added as an organization respondent, and that Edible Arrangements Inc. be removed as an organization respondent.
7On July 23, 2010, Ms. Shina filed a Response to the Application, which denied the allegations of discrimination. She stated that the applicant’s employment was terminated for non-discriminatory reasons, specifically, insubordination, poor attendance, and lying.
8On July 28, 2010, Ms. Kehl filed a Response to the Application, which denied the allegations of discrimination. She denied that she made any racist comments to the applicant, and stated that the applicant misunderstood what she had said. She also filed a Request for an Order During Proceedings, which requested that the Tribunal dismiss the Application against her because it is not within the Tribunal’s jurisdiction because there was no employment relationship between her and the applicant.
9Edible Arrangements Inc. did not file a Response to the Application.
10The Tribunal has not served the Responses on the applicant yet.
11Neither the named respondents nor the proposed organization respondent have filed a Response to the applicant’s Request to amend the Application, and the time for doing so has now passed.
REQUEST TO AMEND
12In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following test for adding a respondent at para. 12:
(…) 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 or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. 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, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.
13In the case at hand, only the first and third questions are applicable because the applicant is proposing the addition of an organization respondent.
14In my view, the applicant’s Request to add Store #1107 as an organization respondent meets the first part of the test because there are allegations made that could support a finding that Ms. Shina violated the Code, and, if the store is named as a respondent, section 46.3(1) of the Code would impose deemed liability on it for any acts of discrimination committed by Ms. Shina.
15In my view, the applicant’s Request also meets the third part of the test because the requested amendment was made in an early stage of the process and well before a hearing, the applicant is making the Request because she appears to have erred in naming the franchisor (Edible Arrangements Inc.) rather than the franchisee (Store #1107) as an organization respondent in her original Application, there is no identified prejudice to the other respondents in naming Store #1107 as a respondent, and, if the Application is allowed, an order against Store #1107 may be necessary to effectively address any findings of discrimination.
16The Tribunal therefore orders that Store #1107 be added as an organization respondent, and that Edible Arrangements Inc. be removed as an organization respondent, to the Application. The style of cause shall be amended accordingly.
NEXT STEP
17Given that Ms. Shina is the owner of Store #1107, there is no need for the Tribunal to re-deliver the Application to her. Store #1107 shall have 35 days from the date of this Interim Decision to file a Response to the Application. Alternatively, if Store #1107’s Response will be identical to Ms. Shina’s, she may send a letter to the Tribunal (copied to the other parties) to that effect.
18After receiving the Response of Store