HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.S.

Applicant

-and-

Brad Marsh’s Blue Line Grill, Charles Marsh, Erik Marsh and Quinton Taylor

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: December 15, 2010

Citation: 2010 HRTO 2489

Indexed as: S.S. v. Brad Marsh’s Blue Line Grill

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex and sexual harassment. Her Application named both an organizational respondent, Brad Marsh’s Blue Line Grill (“the bar”), and three individual respondents.

2This Interim Decision deals with whether one of those three individual respondents, Erik Marsh, should be removed as a party to this proceeding. It also deals with whether Cheryl Hess should be removed as solicitor of record for the individual respondent Quinton Taylor.

3The Application was sent to all four respondents at the address provided. The package containing the Application addressed to “Eric” Marsh was eventually returned to the Tribunal marked “Moved/Unknown.” A Response was filed on behalf of all four respondents on December 4, 2009, in which it was noted that the correct spelling of Mr. Marsh’s first name is “Erik.” The Response confirmed the address for Erik Marsh provided in the Application.

4A copy of the letter enclosing the Response was mailed to the parties, including Erik Marsh, and again the envelope containing the Response was returned marked “Moved/Unknown.” At this point, counsel for the applicant was advised of the Tribunal’s difficulty effecting delivery on Mr. Marsh, and he filed a Request for Order During Proceedings (Form 10) asking to remove “Eric” Marsh as a party to the proceedings as the applicant did not have a current address for him.

5The respondents filed no response to the request to remove Mr. Marsh. There was no explanation for why a Response had been filed on behalf of Erik Marsh. Erik Marsh is, however, the son of Charles Marsh, another named respondent and the owner of the bar.

6The matter proceeded to mediation in November 2010. Shortly thereafter, counsel for the respondents filed a Request for Order During Proceedings (Form 10) to remove herself as counsel of record for Quinton Taylor as there has been a breakdown in the solicitor/client relationship. The applicant filed a Response to the Request for Order (Form 11) opposing the request on the basis that it will only “complicate and delay the proceedings.”

7Three days later, the applicant filed a further Request for Order During Proceedings in which she requested that Mr. Marsh be “reinstated” as a party respondent. The respondents filed a Response to the Request for Order objecting to this request on the basis that during the 10-month period in which they understood that Erik Marsh was no longer a respondent, they did not investigate or gather evidence with respect to the allegations against him, and that reinstating him will, thus, add to the delay in proceeding with this matter.

DECISION AND ANALYSIS

8There is no basis for denying the respondents’ counsel’s request to be removed as solicitor of record for Quinton Taylor. The applicant has not refuted the suggestion that there has been a breakdown in the solicitor/client relationship, but has only countered the request by indicating it is too late in the proceedings to allow Ms Hess to step down. In fact, the Tribunal has not yet scheduled dates for a hearing.

9Accordingly, the Request for Order to remove Cheryl Hess as a solicitor of record for the personal respondent Quinton Taylor is granted.

10If Mr. Taylor plans to retain counsel, he would be advised to do so as soon as possible so that his counsel’s schedule can be taken into account when setting hearing dates. The Tribunal has generally not viewed the late retention of counsel as a valid reason for adjourning a previously scheduled matter.

11With respect to the applicant’s request to “reinstate” Erik Marsh as a respondent, this request is unnecessary as the Tribunal did not order Mr. Marsh removed as a respondent to this proceeding. That is, although the applicant made the request, the Tribunal issued no order removing the respondent. This is reflected in the subsequent correspondence to the parties in which his name continues to appear in the title of proceedings.

12The subsequent Request from the applicant to “reinstate” Mr. Marsh has the effect of rescinding her initial request to remove him as a respondent. Moreover, the submissions filed on behalf of the respondents do not provide compelling reasons for the Tribunal to order the removal of this respondent on its own initiative. Respondents’ counsel has not suggested that she has been unable to reach Mr. Marsh or get instructions from him. Nor has there been, thus far, any suggestion that Mr. Marsh is unnecessarily named as a personal respondent as per the criteria in Persaud v. Toronto District School Board, 2008 HRTO 31.

13I am not seized of this matter.