Abdulle v. National Car Rental and Alamo Rent-A-Car, 2010 HRTO 2085

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samsam Abdulle

Applicant

-and-

National Car Rental and Alamo Rent-A-Car and Sudha Victor

Respondents

-and-

United Food and Commercial Workers Canada, Local 175

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 14, 2010

Citation: 2010 HRTO 2085

Indexed as: Abdulle v. National Car Rental and Alamo Rent-A-Car

1The applicant filed an Application on February 26, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment on the basis of race, colour, place of origin, ethnic origin, sexual orientation and marital status.

2The applicant and the individual respondent are co-workers employed by National Car Rental and Alamo Rent-A-Car ("the employer"). The applicant alleges that, while at work on December 3, 2009, the individual respondent verbally abused her by engaging in profanities, racial slurs and other derogatory comments. The applicant notes that she took the matter to management and that she was given a verbal warning and the individual respondent was given a three day suspension. Subsequently, the individual respondent grieved the suspension and was reinstated.

3The Application was initially only filed against the individual respondent. On August 4, 2010, the applicant filed a Request for an Order asking that the employer be added as a party to the Application. By way of Interim Decision, 2010 HRTO 1767, the Tribunal directed the employer to file written submissions in response to the applicant's Request.

EMPLOYER'S SUBMISSIONS

4In its written submissions filed on September 13, 2010, the employer argues that the applicant's Request fails to plead any facts, information or allegations that establish that the employer has breached the Code. The employer submits that adding it as a respondent would be prejudicial because it would be forced to respond to an application without any meaningful facts or allegations for it to understand its involvement in the case. Relying on Basic v. Royal Health Care Centre, 2010 HRTO 421, the employer asserts that merely being referenced in an application is not a sufficient basis for adding a party. The employer asks the Tribunal dismiss the applicant's Request.

DECISION

5Rule 1.7(b) of the Tribunal's Rules of Procedure states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add a party. Tribunal jurisprudence has articulated the following factors with respect to adding a respondent:

(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?

See Smyth v. Toronto Police Services, 2009 HRTO 1513

6Factors 1 and 3 are relevant for the purposes of analyzing this Request. The first factor has been held to involve a low threshold - the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code. The third factor considers whether the addition of the proposed respondent as a party would cause substantial prejudice to that party's ability to make full answer and defense that cannot be alleviated by procedural orders of the Tribunal. See Marchese v. Fortinos, 2009 HRTO 25.

7Pursuant to the earlier Interim Decision, the employer was provided with a copy of the Application. In her Application the applicant alleges:

• The individual respondent made the alleged offensive remarks in the presence of a member of the employer's management;
• The applicant thereafter verbally notified other members of the employer's management about the incident;
• The applicant was subject to discipline which she considered to be a double-standard;
• The individual respondent was initially disciplined by way of a suspension, which the applicant considered to be inadequate and this suspension was later rescinded by management and the union;
• The applicant perceives that, as a result of the incident, she has become the subject of workplace talk regarding the veracity of the alleged offensive remarks; and
• The applicant has experienced stress, anxiety and loss of confidence in the workplace.

8Based on the foregoing and without deciding the issues, it appears that there are facts alleged which, if proven, could give rise to liability under the Code. It appears the applicant is alleging concerns with respect to management's knowledge and handling of the incident and events after the incident. Further, the applicant clearly feels that she was unfairly treated in how discipline was allegedly meted out. I find that these alleged facts, if proven, could support a finding that the employer violated the applicant's rights.

9In considering whether it would be fair, in all the circumstances, to add the employer, I am unable to accept the employer's assertions of prejudice. According to the Application, the employer was aware of the alleged events at the period of time they occurred. The applicant is seeking to add the employer within one year of the time of the events and less than six months after the Application was filed. As such, the employer was alerted to the fact that the applicant was concerned about the employer's role in the alleged events within the timeline for filing an Application. Moreover, the Application is still in the early stages of the process – no mediation has occurred and no hearing has been scheduled. As such, I find that no prejudice exists such that it would be unfair to require the employer to participate in the proceeding as a respondent.

10In conclusion, the Tribunal makes the following Orders:

a) that the applicant's employer, National Car Rental and Alamo Rent-A-Car, be added as respondent party to this Application and the style of cause be amended accordingly;

b) that a copy of the individual respondent's Response and the applicant's Reply be sent to the employer;

c) the employer is directed to file with the Tribunal a Form 2 Response within 35 days of the date of this Interim Decision; and

d) the applicant may file a Reply within 14 days of receipt of the employer's Response.

11I am not seized of this matter.