Willing v. MLJ Coaching International, 2010 HRTO 2231

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alisha Willing

Applicant

-and-

MLJ Coaching International, Tony Ajavon and Lynne Jacob

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: November 10, 2010

Citation: 2010 HRTO 2231

Indexed as: Willing v. MLJ Coaching International

WRITTEN SUBMISSIONS BY

Alisha Willing, Applicant ) Clara Ho, Counsel

MLJ Coaching International, Tony Ajavon ) and Lynne Jacob, Respondents ) Self-represented

1This Application, filed on June 2, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations that the respondent, Tony Ajavon, discriminated against the applicant in the context of employment on the basis of sex, including sexual harassment.

2Tony Ajavon filed a Response in which he denies the allegations of harassment. He disputes some of the alleged facts but acknowledges others.

3The applicant has filed a Request for Order During Proceedings (“Request”). She seeks to amend the Application to add MLJ Coaching International (“MLJ”) and its owner, Lynne Jacob, as respondents to the Application. She also seeks to amend the Application to include further allegations of fact and to expand upon the remedies sought.

4MLJ and Lynne Jacob oppose the Request to add them as parties. They argue that the applicant ought to have raised the allegations with them sooner, which would have given them an opportunity to investigate appropriately. They argue that the applicant should be precluded from adding them as respondents on this basis.

5Neither Tony Ajavon nor the proposed respondents have addressed the applicant’s Request to amend the Application.

Request to amend the Application

6The applicant seeks to amend the Application to include a number of factual allegations that relate to the proposed respondents. In essence, these additional details relate to the proposed respondents’ alleged knowledge of the harassment and failure to take appropriate steps in response to it.

7The applicant also seeks to amend the Application to expand the remedies she is seeking. She argues that the expanded remedies are reasonably connected to the original Application and that they would not prejudice the respondent and proposed respondents. See Wozeilek v. 7-Eleven Canada, 2009 HRTO 926

8In view of the stage of the proceedings at which this Request to amend is made and the absence of any apparent prejudice to the respondent and proposed respondents, I see no reason to deny the applicant’s Request to amend the Application.

9I order that the Application be amended as requested.

The request to add parties

10The Tribunal in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 explained that the following three considerations are relevant to deciding whether to add 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?

8At the outset, the Tribunal must consider whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed.

9As the Tribunal explained in Marchese v. Fortinos, 2009 HRTO 25:

The threshold for adding a party at a preliminary stage of the proceeding] is a low one; 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: see Epstein, supra at para. 20. On the other hand, although the threshold is low, on the face of the record, there must be a higher standard than mere puffery or frivolous allegations. This must be so, not only to protect a proposed respondent, but also to demonstrate fairness: see Arzem, supra at para. 61.

10I have carefully reviewed the Application in light of the amendments discussed above. I find that there is sufficient basis to add MLJ and Lynne Jacob as respondents to the Application. There are allegations made in the Application that could support a finding that they violated the Code. Further, adding them as respondents at this preliminary stage of the proceedings does not appear to result in any unfairness or prejudice to the parties.

11In regards to Lynne Jacob, I am mindful that it is generally unnecessary to name individuals as personal respondents where they are acting in the course of their regular duties. In this regard, section 46.3 of the Code states:

46.3(1) For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

12However, section 46.3(1) of the Code does not apply to the sections in the Code which deal specifically with harassment, including section 7(2).

13In the amended Application, Lynne Jacob is alleged to have violated the applicant’s right under s. 7(2) of the Code by ignoring the applicant’s complaints about Tony Ajavon. Because section 46.3 of the Code does not deem the corporate respondent liable for Ms. Jacob’s alleged infringement of the applicant’s rights under section 7(2) of the Code, I am satisfied that it is appropriate to add Ms. Jacobs as a respondent.

14While it remains open to the respondents to argue that they were not advised of the alleged harassment in a timely manner, I do not find that this is an appropriate basis to deny the request to add MLJ and Lynne Jacob as respondents.

ORDER

15The applicant’s Request is granted. The style of cause is amended accordingly.

16Within thirty five days of the date of this Interim Decision, MLJ and Lynne Jacob must file a Response with the Tribunal.

17Within 35 days of the date of this Interim Decision, the respondent, Tony Ajavon, may file an amended Response with the Tribunal.

18I am not seized of this matter.