HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cathy Charpentier
Applicant
-and-
Metroland Media Group Ltd. and Gord Paolucci
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Charpentier v. Metroland Media Group Ltd.
APPEARANCES
Cathy Charpentier, Applicant
Self-represented
Metroland Media Group Ltd, Respondent
Jason Green, Counsel
Gord Paolucci, Respondent
Carla Adams, Representative
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex.
2This Application was filed in November 2011 and relates to alleged incidents of discrimination in November 2010. In her Application the applicant named only Gord Paolucci her supervisor. In a Request for Order During Proceeding the applicant seeks to add her employer the proposed respondent Metroland Media Group Ltd. (Metroland), as a respondent. The applicant also seeks to amend the remedies she will be seeking in the event that liability is found.
3Both respondents oppose the Request, although the individual does suggest in his submissions that Metroland may be in a better position to respond to aspects of the Application because it possess information which the individual respondent is not privy to.
4In all the circumstances I find that it is appropriate to add Metroland as a respondent to the Application and the style of cause is amended accordingly. I do so despite the submissions of the respondents which raised significant issues.
5The essence of the Application is the applicant’s claim that she was subject to differential treatment in respect of her employment by the respondent on the basis of sex. The applicant’s claim is that the manner in which she was disciplined by the individual respondent was influenced in whole or in party because she is female and if she was male she would have been treated differently.
6The 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?
7The Smythe analysis contemplates the addition of an individual respondent where a corporate respondent has been named. In this case the applicant having named only her supervisor now seeks to add her employer, accordingly a slightly different approach is required when considering this Request.
8Despite the somewhat unusual circumstance here, a consideration of the first element of the Smythe test is key to the resolution of this Request. It involves a consideration of whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. In my view the applicant has made allegations about the conduct of her supervisor, which if proved, could result in a finding of a violation of the Code by the respondent.
9Section 46.3 of the Code provides as follows:
46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
10As I understand it section 46.3 imposes liability on the part of a corporate respondent for any acts of discrimination by its employees. Based on the material filed by the parties there is little doubt that this section would apply to the actors in this situation. The individual respondent is an employee of Metroland and appears to have been acting in the course of his duties as the applicant’s supervisor. As such any act or omission of the individual respondent is deemed to be an act or omission of Metroland. If that act or omission was in violation of the Code, this section imposes liability on Metroland and would raise the question of what remedial order might be appropriate. Accordingly the proposed respondent is a proper party.
11I also find that it would not be unfair or unjust in all of the circumstances to add the proposed respondent at this stage. Although the Metroland should have been identified as a potential party at an earlier stage, it is not the case that the proposed respondent has been completely unaware of the issues raised in this Application having been involved in other proceedings related to the subject matter of this dispute. As such the delay in identifying Metroland as a respondent is more apparent than real in the circumstances. I have also considered that while Metroland should have been identified at an earlier stage, this Application is at a relatively early stage of the process. Mediation has not yet occurred and the parties obligations to make disclosure has not yet been engaged. As such Metroland’s ability to participate in the process has not been prejudiced to any significant degree.
12For all of these reasons I find that it is appropriate to add the proposed respondent at this stage and the style of cause is amended accordingly.
13The applicant also seeks to amend the Application by the addition of new remedial requests including lost wages and legal expenses. I note that the applicant was seeking legal fees in the Application as originally framed. Both respondents oppose this aspect of the Request.
14The Tribunal has generally allowed an applicant to amend the remedies they will seek so long as the Request is made at a stage that allows the respondent an opportunity to respond to the claims. This case is scheduled for mediation on June 13, 2012 as such there can be no prejudice in the proposed amendment at this stage of the proceeding. I would also observe that the Tribunal has consistently ruled that it has no jurisdiction to make an award of legal expenses. The parties may refer to MacDonald v. Downtown Health Club for Women, 2009 HRTO 1647; XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 and the cases cited therein. However at this stage of the proceeding there is no prejudice to the respondent if the Application is amended allowing the applicant an opportunity to argue the point, if she wishes to do so, at the hearing. The request to amend is granted as well.
15I am not seized of this case.
Dated at Toronto, this 7th day of June, 2012.
“Signed by”
David Muir
Vice-chair```