Thompson v. CF Industries, 2011 HRTO 2262

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shereen Thompson

Applicant

-and-

CF Industries, Inc. and 533670 Ontario Ltd o/a Express Employment Professionals

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 16, 2011

Citation: 2011 HRTO 2262

Indexed as: Thompson v. CF Industries

BACKGROUND

1The applicant filed an Application on June 7, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination with respect to employment on the basis of sex.

2In her Application, the applicant identified the respondent as “Terra International-CF Ind. (Express Personnel)”. The Application was delivered to applicant’s former supervisor who was noted in the Application as the contact person for the respondents. In response to Form 1A - QA1 of the Application, the applicant indicated that the respondents were her former employer and an employment agency.

3On August 27, 2010, the respondents filed a Response Form 2. In Question 1, under the heading of Respondent Contact Information, the Response noted that the full name of the organization was “Terra International-CF Ind. (Express Personnel)”. The narrative response commenced with an overview which states “Terra International-CF Ind. (Express Personnel) (the ‘Company’ or the ‘Respondent’) terminated the Applicant’s employment because...”.

4On May 5, 2011, counsel for the respondents wrote to the Tribunal and advised that “the Respondent has been incorrectly identified as ‘Terra International-CF Ind. (Express Personnel)’” and the appropriate name for the respondent is actually “CF Industries, Inc.”. This letter goes on to state that Express Personnel is a separate legal entity from CF Industries, Inc. (“CF Industries”) and operates under the name of Express Employment Professionals.

5On May 30, 2011, the Tribunal issued a Case Assessment Direction (“CAD”). In addition to requiring that the style of cause be amended to reflect the correct legal name of CF Industries, Inc. as a respondent party to the Application, the CAD also sought clarification as to the applicant’s intentions with respect to “Express Personnel” or “Express Employment Professionals”.

6On June 13, 2011, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking that the Tribunal add Express Employment Professionals (“EEP”) as a respondent party. The applicant submits that her paycheques were issued by EEP, the respondent CF Industries told her to report to EEP at which time she was informed about her dismissal. EEP was aware of the circumstances surrounding the termination of her employment and that a representative of EEP indicated that “something didn’t seem right” about the termination. The applicant submits that EEP had an obligation to investigate her concerns.

7On August 23, 2011, the Tribunal provided EEP with a copy of the Application, the Response, the May 5, 2011 letter and the Tribunal’s CAD.

8On September 11, 2011, EEP filed submissions opposing the request to add it as a respondent party. EEP indicates that its proper legal name is “533670 Ontario Ltd o/a Express Employment Professionals”. EEP submits that none of the alleged facts relate to any conduct by EEP or its agents. EEP submits that it withdrew the applicant from CF Industries based on CF Industries alleged safety concerns and that it has no independent knowledge of the events.

9On September 20, 2011, the respondent CF Industries filed a response to the applicant’s RFOP. CF Industries agrees that EEP should be added as a respondent party because EEP was the applicant’s employer at the time in issue and that only EEP has information regarding the assignments that were provided to applicant following the termination of her assignment with CF Industries.

DECISION

10Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”.

11In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out three relevant factors for considering whether or not to add a respondent party to an Application:

(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?

12Based on the applicant’s RFOP and the submissions of the parties and proposed respondent, it appears that there are facts alleged, which, if assumed (without deciding) to be true, could lead to a finding that EEP breached the applicant’s rights under the Code. It appears that EEP is alleged to have been involved in the execution of the applicant’s dismissal and is alleged to have failed to take steps to investigate what the applicant claims were known by EEP to be suspicious circumstances.

13In considering whether it would be fair, in all the circumstances, to add EEP at this stage, it appears that the applicant intended to name EEP as a respondent because the Application was originally filed as against “Terra International-CF Ind. (Express Personnel)”. Furthermore, the Application is still in the early stages of the Tribunal’s process – only pleadings have been exchanged, no mediation has occurred and no hearing has been scheduled. As such, I find that no prejudice exists such that it would be unfair to require EEP to participate in the proceeding as a respondent.

14I find that this is an appropriate case to exercise my discretion to add EEP as a respondent to this Application.

DIRECTIONS

15The Tribunal orders the following:

i) 533670 Ontario Ltd o/a Express Employment Professionals is added as a respondent to this Application and the style of cause is amended to reflect the same;

ii) Within 14 days of the date of this Interim Decision, the applicant is required to file with the Tribunal and copied to both respondents a detailed statement of her allegations as against EEP;

iii) Within 35 days of the date of receipt of the applicant’s statement, EEP is directed to file a full Response (Form 2) and to expressly indicate whether or not it is amenable to participating in mediation; and

iv) Within 14 days of the date of receipt of EEP’s Response, the applicant and respondent CF Industries are required to file their Replies and expressly indicate whether or not they are amenable to participating in mediation.

16I am not seized of this matter.