HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cyndy Hunter
Applicant
-and-
Farlake Dairy Ltd. and Hubertus Vermeer
Respondents
A N D B E T W E E N:
Dan Hunter
Applicant
-and-
Farlake Dairy Ltd. and Hubertus Vermeer
Respondents
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Hunter v. Farlake Dairy
1These are two Applications filed on October 4, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), which are being dealt with together.
2The Applications allege discrimination in employment, housing and contracts on the basis of citizenship as well as reprisals under the Code.
3The applicant Cyndy Hunter filed a previous Application against the respondent Hubertus Vermeer, which was dismissed by Decision dated March 26, 2010: 2010 HRTO 669. In their Response, the respondents have requested dismissal of these Applications on the basis that the prior proceeding before the Tribunal has appropriately dealt with the substance of the Applications. The respondents also submit that the matter is res judicata, that there has been undue delay in filing these Applications, and that these Applications may in themselves be an act of reprisal.
4Further, the respondents request dismissal of the Applications on the basis that the allegations of reprisal arise out of statements made and/or correspondence delivered during the course of the previous proceeding, which are protected by absolute privilege. The respondents take the position that the pursuit of valid legal remedies does not constitute “reprisal” or “threat of reprisal” under the Code.
5The applicants filed a Reply addressing matters raised in the Response.
6The Tribunal will schedule a hearing by conference call to receive the submissions of the parties on the respondents’ requests to dismiss, in accordance with the directions at the end of this Interim Decision.
REQUEST TO ADD A PARTY
7On December 19, 2010, the applicants filed a Request for an Order During Proceedings, seeking to add a respondent to these Applications. The applicant Cyndy Hunter also filed a Form 23 confirming that the Request has been delivered by fax to counsel for the respondents, although it does not indicate that it has been delivered to the proposed respondent.
8Normally, a party seeking to add a party must deliver a copy of the Request to the proposed respondent. In the circumstances, it is not necessary for the Request to be delivered to the proposed respondent as, on my review of the Request, I find no basis to add him as a party.
9The submissions state that the proposed respondent is an employee/contractor with the respondents, and was hired to replace the applicants. The applicants state that “this is the same person which the respondent continuously made distinctions between us in our previous application to the HRTO.” They also state that “we feel that Mr. van Erk and the respondents are conspiring against us.” The applicants attach correspondence in support of their Request, which appears to relate to civil proceedings between the parties.
10Leaving aside whether the correspondence is covered by absolute privilege, which is an issue raised by the respondents in relation to the reprisal claim, I have reviewed the material relied on in support of the Request to add a respondent, and it does not establish that the proposed respondent should be added.
11The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, 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?
12The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
13This Request can be determined on the basis of the first question set out in Smyth above.
14The Request contains no allegations that could support a finding that the proposed respondent violated the Code. The broad assertion that the proposed respondent conspired with the respondents could not provide a sufficient basis for such a finding. Even if it were true that, as suggested, the respondents preferred the proposed respondent over the applicants, and that this favourable treatment was based on a ground under the Code, this would not be a basis for a finding of liability against the proposed respondent
15Further, even if I could take into consideration the statements made in the correspondence relating to the civil proceedings, nothing in that correspondence provides a basis for any finding of liability against the proposed respondent. The Request is accordingly denied.
DIRECTIONS FOR HEARING
16A Notice of Hearing with call-in information will follow. The parties must deliver any additional documents or case law that they want the Tribunal to consider to each other and file them with the Tribunal no later than 14 days prior to the hearing.
17Having regard to the submissions in the Application, Response and Reply, the Tribunal directs the parties to be prepared to address the following issues at the hearing:
Whether the Applications should be dismissed under section 45.1 and/or as an abuse of process, having regard to the prior Application and its disposition;
Whether the allegations of reprisal should be dismissed because they arise out of statements or actions covered by absolute privilege, and are in pursuit of legal remedies
18I am not seized of this matter.
Dated at Toronto this 31st day of January, 2011.
“Signed by”
Sherry Liang
Vice-chair