Human Rights Tribunal of Ontario
B E T W E E N:
Ruby Kakan Applicant
-and-
Voysus Group Inc. and Mahdi Raza Respondents
INTERIM DECISION
Adjudicator: Eric Whist Date: July 9, 2012 Citation: 2012 HRTO 1345 Indexed as: Kakan v. Voysus Group Inc.
WRITTEN SUBMISSIONS
Ruby Kakan, Applicant Self-represented
1This is an Application filed on October 18, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the ground of sex. The Application alleges that the applicant’s employment with the respondent was terminated once the respondent learned that she was pregnant.
2On May 4, 2011, the applicant filed a Request for an Order During Proceedings (“RFOP”) seeking to add Mr. Mahdi Raza as an individual respondent. Mr. Raza is a Director of Operations for the respondent. The Application alleges that while at work on November 19, 2009 the applicant indicated for the first time that she was pregnant and did so to Mr. Raza. The Application alleges that the applicant’s employment was terminated the next day and that the applicant was told that this decision was made by Mr. Raza. In her RFOP the applicant submits that the reason that she has requested that Mr. Raza be added as an individual personal respondent is because as a Director of Operations Mr. Raza would have had the independent authority to fire employees and to draft policy.
3The respondent has not responded to the RFOP and the time for doing so under the Tribunal’s Rules has elapsed.
THE REQUEST TO ADD A PARTY
4The Tribunal, in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, explained that the following three considerations are relevant to deciding whether to add a respondent:
(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?
5The Tribunal in Santos v. Reitman’s (Canada) Limited, 2011 HRTO 2251 described how the three factors in Smyth v. Toronto Police Services Board might be applied :
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, 2008, 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).
6I am of the view that a finding of discrimination could be made against Mr. Raza given his alleged direct involvement in the decision to terminate the applicant’s employment. However, it would appear from the respondent’s Response that it takes the position in denying the applicant’s allegations that Mr. Raza was at all times acting within his mandated responsibilities and that the applicant was dismissed for documented performance issues.
7The respondent does not explicitly state that in the event that the conduct of Mr. Raza is found to be in violation of the Code, that it