HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacquelyn Trowell

Applicant

-and-

6286160 Canada Limited o/a CR Printing and Camille Abillama

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: June 29, 2011

Citation: 2011 HRTO 1244

Indexed as: Trowell v. 6286160 Canada Limited

BACKGROUND

1This Application was filed on September 2, 2009 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application named a corporate respondent, 6286160 Canada Ltd. o/a CR Printing (“CR Printing”), and a personal respondent, Sameer Hage, who was the applicant’s supervisor. The Application alleges that the applicant’s employment was terminated after the respondents learned that the applicant was pregnant.

2In an Interim Decision dated April 20, 2010, 2010 HRTO 859 , the Tribunal ruled that the Application against the corporate respondent was stayed pursuant to section 69 of Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”). Section 69 of the BIA provides that no creditor has any remedy against the insolvent person or the insolvent person’s property or shall commence, continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy. The Tribunal also ruled that the personal respondent, Sameer Hage, was to be removed from the Application because the applicant was unable to provide a correct address for this respondent.

3On September 10, 2010 the applicant filed a Request for an Order During Proceedings (the “Request”) to add Camille Abillama as a personal respondent. The Request states that Camille Abillama is merely the correct spelling of the person identified in the Application as Mr. Camille Ballama and the owner of CR Printing. The Request submits that Mr. Abillama was directly involved in the applicant’s dismissal and that this involvement was identified in the Application. The Request submits that it is appropriate to add Mr. Abillama as a respondent as the Tribunal could find that he discriminated against the applicant and could hold him personally liable for a violation of the Code.

4The Request was served on the Trustee for the corporate respondent, Ginsberg, Gingras & Associes/Associates Inc. (the “Trustee”) and on Mr. Abillama, as an interested party. Neither the Trustee nor Mr. Abillama has responded to this Request.

5On December 8, 2010 the Tribunal issued a Case Assessment Direction (“CAD”) directing the Trustee to provide the Tribunal, the applicant and Mr. Abillama with copies of the bankruptcy order. The CAD also invited submissions from the Trustee and Mr. Abillama as to whether any Application against Mr. Abillama would be stayed by the Court’s bankruptcy order.

6On March 31, 2011, the Trustee wrote to the Tribunal to state that there was no bankruptcy order against the corporate respondent only that there were documents to the effect that the corporate respondent filed an assignment in bankruptcy on August 19, 2009. There are no indications that Mr. Abillama was personally subject to these bankruptcy proceedings.

7The Tribunal has not received any submissions from the Trustee or Mr. Abillama as to whether the Application would be stayed against Mr. Abillama if he were added as a respondent.

8The Tribunal received written submissions from the applicant dated March 24, 2011 reiterating the request that Mr. Abillama be added as a personal respondent. The applicant submits that the stay provisions in section 69(1) of the BIA only protects corporations and does not protect individuals from personal liability pursuant to the Code. The applicant submits that the allegations in the Application against Mr. Abillama give rise to potential personal liability for discrimination regardless of whether Mr. Abillama was acting in the course of his duties or not. The applicant submits that section 9 of the Code establishes the basis for personal liability for all forms of discrimination, that the personal liability of an individual respondent is not ousted by either the organic theory of corporate liability or the deemed corporate liability as defined in section 46. 3 of the Code.

9The applicant submits that the Code holds both individuals and corporate respondents to account for discriminatory actions. Where a corporate respondent defends the action and accepts vicarious liability an individual respondent may be “off the hook” either by agreement between the parties or as a result of an order of the Tribunal. However, where no direct route to corporate liability exists individuals must continue to be held to account for acts of discrimination. The applicant asks that Mr. Abillama be added as a respondent and that the application proceed against him personally.

ANALYSIS AND DECISION

10The Tribunal’s test for adding respondents has been articulated at paragraph 12 in the Tribunal’s decision in Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

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?

11I am satisfied that Mr. Abillama should be added as a respondent pursuant to the three part test set out in Smyth, supra. I find that there are specific allegations in the Application that could support a finding that the proposed personal respondent violated the Code. Specifically, the Application alleges that Mr. Abillama, the owner of CR Printing, was told by the applicant’s supervisor, that the applicant was pregnant and that Mr. Abillama was upset by this news. The Application alleges that the applicant’s supervisor subsequently told the applicant that she would have to find another job because the company needed someone full time. The Application alleges that the applicant then told her supervisor that terminating her employment for being pregnant was illegal and in response was told by her supervisor that he was just the messenger for Mr. Abillama. I am satisfied that this narrative indicates that the applicant is alleging that Mr. Abillama had a central role in the decision to terminate her employment and that this decision was related to her announced pregnancy.

12I am further satisfied that there is reason to include Mr. Abillama as a personal respondent even though the applicant has named an organizational respondent, CR Printing. In determining whether an individual should be named as a personal respondent in instances in which a corporate respondent has been named the practice at the Tribunal is to consider the factors set out in Tribunal’s decision in Persaud v. Toronto District School Board 2008 HRTO 31. In most cases the focus is on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent.

13The Tribunal has determined that a personal respondent can be held liable for his or her actions if they are found to have violated the Code in circumstances where they are employed by a corporate respondent that has had an Application stayed as a result of the operation of the law. In Johnson v. Yorkview Lifecare, 2009 HRTO 1338, the Tribunal held that “[n]either the statutory stay under the BIA, nor a court stay in either a receivership or CCAA, is designed to shield solvent individuals from prosecution for acts for which they may be found to be personally liable.” The indication, in the present case, is that the bankruptcy proceedings are intended to stay proceedings against CR Printing and its property (I note here that no specific bankruptcy order is before me, only documents to indicate that CR Printing has filed an assignment in bankruptcy). There is no indication that Mr. Abillama has personally filed an assignment in bankruptcy.

14The applicant is alleging that she was subject to acts of discrimination by Mr. Abillama and asserts that the conduct of Mr. Abillama is a central issue in his Application. I find the reasoning in Johnson, supra applicable in the present circumstance. I am satisfied that Mr. Abillama can potentially be held personally liable for the actions that allegedly violate the Code.

15In light of all the circumstances, I am of the view that it would be fair to add Mr. Abillama as a respondent. The Tribunal has added personal respondents in circumstances involving a corporate respondent in the midst of bankruptcy proceedings when it has determined that the proposed respondent’s actions have been central to the applicant’s case (see Cugliari v. Telefficiency Corporation, 2001 26229 (ON H.R.T.). The Tribunal has also awarded financial damages solely against personal respondents in instances in which a human rights complaint has been discontinued against a named corporate respondent that went into receivership (see Selinger v. McFarland, 2008 HRTO 49).

16The applicant’s Request that Camille Abillama be added as a personal respondent is allowed and the style of cause amended accordingly. The Application will be served on Mr. Abillama. The personal respondent will have 35 days in which to file a Response.

17I am not seized of this matter.