minicounsel

James v. K.A.S. Personnel Services Inc., 2011 HRTO 950

May 17, 2011

James v. K.A.S. Personnel Services Inc., 2011 HRTO 950

Case Summary

The applicant filed a human rights application alleging sexual harassment, disability discrimination, and reprisals. She brought a Request for Order During Proceedings to add Metro Municipal Recycling Services Inc. as a respondent. The Tribunal granted the request, finding it met the requirements for adding a party and that there was no prejudice. The respondent Cascades Recovery Inc. brought a Request for Summary Hearing, arguing it was not the applicant's employer. The Tribunal dismissed the request, noting Cascades had failed to file a full Response as required by the Rules and that a summary hearing was not appropriate given the legal and factual issues.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shalisa James

Applicant

-and-

K.A.S. Personnel Services Inc., Cascades Recovery Inc., Metro Municipal Recycling Services Inc. o/a Metro Waste Paper Recovery, and James Onyeani

Respondents

INTERIM Decision

Adjudicator: David A. Wright

Date: May 17, 2011

Citation: 2011 HRTO 950

Indexed as: James v. K.A.S. Personnel Services Inc.

WRITTEN SUBMISSIONS

Shalisa James, Applicant ) Melissa Mark, Counsel

Cascades Recovery Inc., ) Carissa Tanzola, Counsel

Respondent )

[1] This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the applicant experienced sexual harassment and sexual solicitation in her employment from the individual respondent. It also alleges that she experienced discrimination because of disability and reprisals. The applicant worked at the Metro Waste Recovery Plant, and states that she was employed by K.A.S. Personnel Services Inc. (“K.A.S.”). The plant is owned by Cascades Recovery Inc. (“Cascades”).

[2] The Applicant alleges that the individual respondent is an employee of K.A.S. She alleges that she made complaints about the sexual harassment and sexual solicitation to the plant manager, Hilaria Rider, who is employed by Cascades, and to employees of K.A.S. She alleges that the complaints were not properly addressed by the management of K.A.S. and Cascades. She also alleges that Cascades discriminated against her on the basis of disability when the plant manager refused a request for accommodation.

[3] K.A.S. filed a full Response to the merits of the Application as required by the Tribunal’s Rules. Cascades did not comply with the obligation, set out in Rule 8.2, that a respondent respond to each allegation set out in the Application. It filed a Response and a Request for Summary Hearing taking the position that it is not the applicant’s employer and therefore not a proper respondent. Its Response states that it “reserves its right to file a full Response subsequent to the Tribunal’s decision” on the issue of whether it is a proper respondent.

[4] Cascades acknowledges that it owns the plant. It acknowledges that it pays Ms. Rider. However, it states that all aspects of Ms. Rider’s employment relationship are governed by Metro Municipal Waste Management Inc. (“Metro Municipal”). It states that the only relationship between the applicant and Cascades is that “the Applicant was employed in the physical building owned by Cascades”. This statement is somewhat puzzling in view of its acknowledgement that it pays the applicant.

[5] Unsurprisingly, the applicant brought a Request for Order During Proceedings to add Metro Municipal as a respondent and conducted a corporate search on Cascades and on Metro Municipal. Interestingly, that search revealed apparent connections between the two companies. The Ontario address and contact person for service for both Cascades and Metro Municipal are exactly the same: Albino Metauro.

[6] Despite the fact that the applicant’s Request for Order During Proceedings was delivered to Metro Municipal and to counsel for Cascades, the Tribunal received no response to that request from either company.

DECISION

[7] The applicant’s Request for Order During Proceedings to add Metro Municipal is granted. It clearly meets the requirements for adding a party set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513. In light of the Application and Cascades’s response, it is clear that there are allegations made that could support a finding that Metro Municipal violated the Code. There is no prejudice to either respondent by adding Metro Municipal at this stage and it would be fair in all the circumstances. Metro Municipal is added as a respondent. It shall file a complete Response in Form 2 within 35 days of the date of this Interim Decision.

[8] I turn now to Cascades’s Request for Summary Hearing. This Request is dismissed. Cascades has not complied with the Tribunal’s Rules by filing a full Response. A Request for Summary Hearing is not an opportunity to avoid the obligation to file a full Response on the merits and a respondent has no “right” to await a decision on a preliminary issue before filing a full Response. It would not be appropriate to order a Summary Hearing without a full Response in this case, particularly given that the respondent was directed to file a response and has instead raised a technical objection without providing a factual response. Moreover, in view of the nature of the legal and factual issues this is not an appropriate case for a summary hearing.

[9] In the circumstances, Cascades shall have two weeks from the date of this Interim Decision to file a complete Response in accordance with the Rules.

ORDER

[10] Metro Municipal Recycling Services Inc. o/a Metro Waste Paper Recovery is added as a respondent and the style of cause is amended accordingly. It shall file a complete Response in Form 2 within 35 days of the date of this Interim Decision. Cascades Recovery Inc. shall file a complete Response within two weeks of the date of this Interim Decision.

[11] I am not seized.

Dated at Toronto, this 17^th day of May, 2011.

“signed by”

David A. Wright

Associate Chair