HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Oproiu

Applicant

-and-

ATG Communications Group, Mark Schwartz and Mark Klady

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: August 15, 2011

Citation: 2011 HRTO 1518

Indexed as: Oproiu v. ATG Communications Group

WRITTEN SUBMISSIONS BY:

Mark Oproiu, Applicant ) Cecil Norman, Representative

Mark Schwartz, Respondent ) Self Represented

BACKGROUND

1This is an Application filed on May 11, 2009, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The personal respondents filed a response on November 3, 2009.

2On January 10, 2011, the parties attended mediation which did not result in a settlement of the Application. Following the mediation the parties engaged in a discussion regarding case management of the Application and agreed to a timetable. The applicant had four weeks to file a Request for an Order During Proceedings to add a corporate respondent and to amend the Application to provide for a more accurate request for remedy.

3Nothing was received from the applicant following the mediation.

4On July 8, 2011 a Case Assessment Direction was issued by the Tribunal directing the applicant to, if desired, file a Request for Order During Proceedings (Tribunal Form 10) within 20 days from the date of the Case Assessment Direction.

5On July 25, 2011, the applicant filed a Request for an Order During Proceedings requesting that the corporate respondent employer be added to the Application and amending the Application with regard to the desired remedy.

6The Application as originally filed requested a financial remedy of $3,824.20. The applicant now wishes to amend the Application to request special damages (wage, benefit and bonus loss) in the amount of $20,099.82 and “compensation for injury to dignity and self-respect” of $20,000 for a total of $40,099.82.

7On August 8, 2011, the personal respondent Mark Schwartz filed a Response to a Request for Order During Proceedings (Tribunal Form 11). In response to the Form 11 question 8, “What is your position on the Order requested?”, the respondent stated, “The calculations provided are in-correct [sic], the information provided for the additional respondent is in correct [sic]”.

8No response to the Form 10 was received from the respondent Mark Klady.

ANALYSIS

9Tribunal Rule 1.7 states in part:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:

b) add or remove a party;

c) allow any filing to be amended;

Request to Amend

10In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 , Dunford v. Holiday Ford Sales, 2009 HRTO 1563 and Aubin v. Sudbury Sexual Assault Centre, 2011 HRTO 1281.

11Although not explicitly stated, it is apparent that the applicant retained a representative after filing the Application and has now received advice with regard to the full extent of his right to seek damages.

12The personal respondents have known at least since the time of the mediation in January 2011 of the applicant’s possible desire to amend the remedy portion of his Application. The scheduled hearing date with regard to the merits of the Application is some months in the future. In the circumstances, I find that the respondents would not be prejudiced in granting the applicant’s request for amendment.

13In view of the timing in which the Request to amend has been made, the nature of the amendment, and the absence of any apparent prejudice, I see no reason to deny the applicant the requested amendments to the Application.

Request to Add the Employer as a Respondent

14The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513 and recently in Rahimi v. Sales Dynamic, 2011 HRTO 88, that 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?

15With regard to the first element of the test in Smyth, it is clear that the allegations in this case arose in the context of the applicant’s employment. The applicant alleges that his employment with ATG Communications Group was terminated by the employer’s sales manager Mark Klady on the basis of a prohibited ground under the Code. Having reviewed the Application I am satisfied that there are facts alleged by the applicant, which if proven and absent some defence by the proposed corporate respondent, could lead to a finding that the proposed corporate respondent is responsible for the alleged violation of the applicant’s rights.

16The second part of the Smyth analysis is not relevant to the present Application.

17Given that from the outset the employer respondent’s sales manager and president were named as respondents in the original application, there is no prejudice in adding the corporate respondent at this stage. The Tribunal has in similar circumstances added an employer respondent, see Romero v. Mennonite Brethren Senior Citizens Home, 2011 HRTO 1063. I find there is no unfairness in adding the proposed corporate respondent to the Application.

ORDER

18Section 10 (“The Remedy”) of the Application is amended as per the applicant’s Form 10 Request.

19ATG Communications Group is added as a respondent to the Application. The proper contact information for this respondent should be noted as contained in the Form 11 of August 8, 2011.

20As per the case management agreement agreed upon at the conclusion of the mediation of January 10, 2011, the parties shall, if desired, deliver to the other parties and file with the Tribunal a Form 10 requesting removal of one or both of the personal respondents within thirty (30) days of the date of this Interim Order.