HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sachy Arunachalam
Applicant
-and-
Best Buy Canada Ltd., Carl Cacheiro and Romeilyn Navasero
Respondents
INTERIM DECISION
Adjudicator: Sheri D. Price
Indexed as: Arunachalam v. Best Buy Canada
1The purpose of this Interim Decision is to address the applicant’s Request that Romeilyn Navasero be added as a party to the Application, as a personal respondent, and also to address the fact that counsel for the corporate respondent no longer represents Mr. Cacheiro in this matter.
Request to add personal respondents
2The Application in this matter was filed under s. s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), on April 2, 2009. The applicant alleges that the respondents discriminated against and harassed her on the basis of sex, place of origin, citizenship and ethnic origin, contrary to the Code. In the original Application, the applicant named “Romeilyn” as a respondent to the Application and provided an address for her. However, since the applicant did not provide the last name for “Romeilyn” at that time, the Application was not delivered to Ms Navasero by the Tribunal. Subsequently, the applicant filed a Request for an Order during Proceedings (the “Request”) seeking particulars from the respondent, specifically the last name of “Romeilyn”, so that the Application could be delivered to her and also seeking to add Ms Navasero as a respondent to the Application.
3The Application identifies Ms Navasero as the applicant’s supervisor at the time of the events giving rise to the Application and the “main perpetrator” of harassing comments to the applicant on the basis of her pregnancy during her employment with the corporate respondent.
4The applicant submits that in determining whether to grant a request to add a party, the Tribunal should consider whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code: Marchese v. Fortinos, 2009 HRTO 25 (Can LII). The applicant submits that the facts in the Application, if proven, support a finding that Ms Navasero harassed the applicant and/or discriminated against her and violated her rights under the Code. Thus, the applicant submits, Ms Navasero is properly added as a party to the Application.
5Counsel for the corporate respondent and, at that time, Mr. Cacheiro, responded to the Request that Ms Navasero be added a respondent to the Application on behalf of Ms Navasero. Ms Navasero opposes the request that she be added as a party on the basis that she was acting at all relevant times within the scope of her duties and there is no advantage to the applicant in having her added as a personal respondent. Counsel for the corporate respondent will, however, assume the “defence” of this matter on behalf of Ms Navasero if she is added as a party by the Tribunal and satisfy any remedy awarded. The corporate respondent and Mr. Cacheiro oppose the Request to add Ms Navasero as a party to the Application.
ANALYSIS AND DECISION
6Section 36 of the Code identifies the proper parties to an Application to the Tribunal:
The parties to an application under section 34 or 35 are the following:
In the case of an application under subsection 34 (1), the person who made the application.
In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.
In the case of an application under section 35, the Commission.
Any person against whom an order is sought in the application.
Any other person or the Commission, if they are added as a party by the Tribunal.
7In this case, the applicant seeks a remedy from Ms Navasero in the original Application, namely an Order that Ms Navasero provide a letter of apology to the applicant. In addition, the applicant seeks to have the respondents, including Ms Navasero, provide her with a financial remedy if liability under the Code is established. Accordingly, based on the plain wording of section 36(4) of the Code, it appears that Ms Navasero is a proper party to the Application.
8It is true that the Tribunal has expressed concern about the unnecessary naming of personal respondents in Applications where there is an organizational or corporate respondent who is also liable for the alleged infringement of the applicant’s rights and is in a position to satisfy any remedies ordered in the case. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
9In this case, however, there appears to be a sufficiently compelling reason to add Ms Navasero as a personal respondent.
10First, Ms Navasero’s conduct towards the applicant is a central issue in this case. Moreover, I am satisfied that there are allegations in the Application, which, if proven, could support a finding that Ms Navasero infringed the applicant’s rights under the Code.
11In addition, if it is proved that Ms Navasero harassed the applicant on the basis of sex contrary to the Code, the remedy for such conduct may be an order against Ms Navasero personally. This is because section 46.3 of the Code, which deems employers liable for the actions of their employees carried out in the course of employment, does not apply to the sections in the Code which deal specifically with harassment:
(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.
12Section 7(2) of the Code appears to be relevant to this matter on the face of the allegations in the Application and states:
Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.
13Even though the corporate respondent appears willing to assume liability for Ms Navasero’s conduct, it is not clear to me that it would be appropriate to refuse to add Ms Navasero a personal respondent on that basis.
14Finally, I note that Ms Navasero was named as a respondent in the original Application. The only reason that Ms Navasero was not initially served with the Application by the Tribunal was because the applicant did not know her last name at the time the Application was filed. For this reason, it may be more appropriate to consider the applicant’s Request as a request that the Tribunal deliver the Application to a named respondent, rather than a request to add a party during the proceedings.
15For the reasons set out above, the request to add Romeilyn Navasero as a personal respondent in this matter is granted and the style of cause is amended accordingly. The Tribunal will deliver the Application to Ms Navasero at the address for her provided in the Application.
16The Tribunal considers it appropriate to convene a conference call in this matter on February 4, 2010 at 11 AM , to address any procedural issues which arise as a result of its decision to add Ms Navasero as a respondent. These include the time for the filing of a response to the Application by Ms Navasero and any Reply by the applicant; whether the ordinary time limits for response and reply ought to be abridged; as well as any other issues arising in this regard.
17The Registrar will contact the parties to provide call-in information about the call.
Carl Cacheiro
18Mr. Cacheiro was named as a personal respondent in the original Application and was served with the Application at the address provided in the Application. Through his counsel at the time, Mr. Cacheiro filed a Response to the Application. A Notice of Confirmation of Hearing dated October 7, 2009 was sent to Mr. Cacheiro. Accordingly, it would appear that Mr. Cacheiro, a personal respondent in this matter, had notice of the Application and the date and time of the hearing.
19In a letter to the Tribunal dated October 29, 2009, counsel for the corporate respondent notified the Tribunal that counsel for the corporate respondent no longer represents Mr. Cacheiro, because he has since left the employ of the corporate respondent.
20It is not unusual for parties to an Application to change counsel during the course of proceedings before the Tribunal. Regardless of change in counsel, a respondent to an Application continues to be a party, with a right to participate in the hearing, and with the possibility of remedies being ordered against him or her, if an infringement of the Code is proven. If Mr. Cacheiro is no longer represented by counsel for the corporate respondent, he is entitled to represent himself in this matter or to retain other counsel to represent him, as he sees fit. This is, of course, for Mr. Cacheiro to determine. It does not alter his status as a party to the Application or his rights and obligations in relation to it.
21As a party to the Application, Mr. Cacheiro is entitled to be copied on all relevant documentation and correspondence in respect of the Application, in accordance with the Tribunal’s Rules. It appears that Mr. Cacheiro may no longer be served through counsel to the corporate respondent. Accordingly, both the applicant and the corporate respondent are directed to immediately provide the Registrar of the Tribunal with Mr. Cacheiro’s current contact information. The Tribunal acknowledges that a Form 23 dated January 12, 2010 with an address for Mr. Cacheiro was filed with the Tribunal, but it does not contain the full contact information usually requested, i.e. telephone number, email, fax, etc. Both the applicant and the corporate respondent are similarly directed to provide Mr. Cacheiro with a copy of this Decision immediately.
22I am not seized.
Dated at Toronto, this 1st day of February, 2010.
“Signed by”
Sheri D. Price
Vice-chair