Santos v. Reitman’s (Canada) Limited, 2011 HRTO 2251

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Santos Applicant

-and-

Reitman’s (Canada) Limited Respondent

INTERIM DECISION

Adjudicator: David Muir Date: December 15, 2011 Citation: 2011 HRTO 2251 Indexed as: Santos v. Reitman’s (Canada) Limited

1This is an Application filed April 15, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of creed and reprisal in employment. The corporate respondent filed a Response to the Application. The hearing of this Application has been set to begin on May 10 and 11, 2012.

2The applicant has filed a Request for Order (“Request”) seeking to add two employees to whom the applicant reported as individual respondents. The applicant also seeks to amend the Application by adding further allegations of reprisal subsequent to the filing of the Application, including an allegation that she was terminated for seeking to enforce her rights under the Code. It is also alleged that the applicant was subject to reprisal for refusing to violate another’s Code rights. The organizational respondent opposes both aspects of the applicant’s Request.

Adding Individual Respondents

3The Tribunal has 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?

The application of the first factor 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. The ultimate question posed in Persaud is whether it is necessary to the fair, just and expeditious adjudication of the Application that the individual(s) in question be included in the Application as individual respondent(s).

4I am not satisfied that it is necessary to the fair, just and expeditious adjudication of this Application to add the proposed individual respondents. It is clear from the Application and the corporate respondent acknowledges the fact that the two individuals were acting in the course of their employment. The corporate respondent also states that in the event that the conduct of either or both of these individuals is found to be in violation of the Code, it accepts responsibility for such conduct and is able to respond to the remedial requests of the applicant. The applicant does not seek any remedy from the proposed individual respondents and based on the materials filed to date, if the Application is successful, it is not likely that based on the Tribunal’s case law the Tribunal would consider a remedy from either of them appropriate.

5For these reasons the applicant’s Request to add the proposed individual respondents is denied and they are not added to this Application.

Amending the Application

6The applicant seeks to amend the Application by adding a second allegation of reprisal. The respondent opposes the Request on the basis that there is no factual or thematic connection between the allegations in the Application and this new allegation. The respondent also states that it might delay the hearing of this case because one of the proposed respondents (above) is not available for the hearing. The respondent states that it will be prejudiced if these new and unrelated issues are added to the Application.

7In determining requests to amend applications under section 34 of the Code, the Tribunal has considered 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; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

8I am satisfied that the most fair, just and expeditious manner of adjudicating the dispute between the parties is to allow the amendment of the Application as requested. I do not agree with the respondent that there is no factual or thematic connection between the allegations made in the Application and the proposed amendment. In the Application the applicant alleges that she was subject to reprisal for raising the use by the respondent of advent calendars in its store over the Christmas holiday season. The amendment alleges broadly and without any particulars that the reprisal continued in various forms culminating in the applicant’s termination for cause on an undisclosed date.

9The respondent says that it will be prejudiced because the most significant issue in this case is a broad policy issue of interest to retailers across the province – that being whether the Code prohibits the use of Christmas imagery by retailers. The respondent is concerned that this central issue might not be clearly answered if the applicant is permitted to add these new allegations of reprisal.

10I agree that the policy question respecting the use of Christmas imagery by a retailer has been raised by the respondent. However, it is not the only issue raised by the Application as originally framed. The Tribunal’s determination on the policy point may not conclusively determine the reprisal issues raised in the Application. That is, whether or not the Tribunal concludes, for example, that it is not a violation of the Code for a retailer to use an advent calendar in its stores, the reprisal issues will remain to be determined. Amending the Application by the addition of additional reprisal allegations about events following the filing of the Application does not change the situation.

11The respondent says that amending the Application will complicate and lengthen the hearing. I agree that it likely will; however, the respondent’s suggestion that the applicant file a fresh Application is no answer to the practical issues raised by the applicant’s raising new allegations at this stage of the proceeding. The respondent also states that one of its potential witnesses will be unavailable on the days set and that it had not intended to call this person in response to the original Application. This is a hearing matter and if the parties cannot find a resolution, the respondent may raise it with the member assigned to hear this case.

12The Application is amended as requested by the applicant.

Directions

13The respondent makes a fair point when it states that the amendment lacks particulars – the date of the applicant’s dismissal from employment is not provided, for example.

14In order to ensure a fair, just and expeditious adjudication of the Application, as amended, the Tribunal makes the following Directions:

• The applicant will deliver and file full particulars of the allegations made in the amendment to the Application within 21 days of the date of this Interim Decision;
• The respondent will deliver and file a Response to the amended Application within 14 days of receipt of the applicant’s particulars required above;
• On or before February 16, 2012, the parties will deliver to each other a list of all arguably relevant documents in their possession. Where privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim. The parties will also deliver to each other a copy of each document contained on the list, excluding any documents for which privilege is claimed;
• The parties will deliver and file any documents upon which they intend to rely at the hearing of the Application as amended, as well as their witness lists and summaries of each of their witness’ anticipated evidence, on or before March 26, 2012, in accordance with the Directions contained in the Notice of Confirmation of Hearing, dated November 21, 2011.

15I am not seized.