William Jeannotte v. 1094388 Ontario Limited o/a Pure Gold, 2012 HRTO 2300

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Jeannotte

Applicant

-and-

1094388 Ontario Limited o/a Pure Gold, Doug Boyce and Elaine Saunders

Respondents

A N D B E T W E E N:

William Jeannotte

Applicant

-and-

1094388 Ontario Limited o/a Pure Gold

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 6, 2012

Citation: 2012 HRTO 2300

Indexed as: Jeannotte v. 1094388 Ontario Limited

WRITTEN SUBMISSIONS

William Jeannotte, Applicant

Self-represented

1094388 Ontario Limited o/a Pure Gold, Doug Boyce and Elaine Saunders, Respondents

Doug Boyce, Representative

1The applicant filed his first Application (2012-11831-I) under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 22, 2012, alleging discrimination and reprisal with respect to employment on the basis of disability.

2The applicant worked as a disc jockey at the respondent adult entertainment establishment. The applicant alleges that the respondents treated him unfairly by requiring him to answer the telephone while he performed his disc jockey duties. The applicant alleges that he was unable to simultaneously answer the telephone and operate the disc jockey equipment because of his disability. The applicant alleges that he was not provided with appropriate breaks which he required for his disability. The applicant alleges that his employment was threatened by the respondents and that the respondents failed to accommodate his disability.

3The applicant filed a second Application (2012-12164-I) on August 7, 2012 asserting further allegations of reprisal arising out of his first Application.

4On August 21, 2012, the applicant filed a Request for an Order During Proceedings asking to amend his first Application in order to add the owners of the corporate respondent as individual respondents, namely Darko Vranich and Chris Rudan, and also requested to amend his remedial claim to add further damages.

5On August 30, 2012, the respondents filed a Response denying the allegations of discrimination. The respondents allege that the applicant was treated fairly and provided with suitable accommodation, including a hands-free headset. The respondents ask that the Tribunal remove the individual respondents from the Application on the basis that these individuals were acting in their capacity as management personnel on behalf of the corporate respondents. The respondents provided a copy of a Statement of Claim filed by the applicant on July 24, 2012 with the Superior Court of Justice (Small Claims Court) alleging that the respondents failed to provide the applicant with legal entitlement for lunch breaks.

6By way of Interim Decision 2012 HRTO 1875, the Tribunal consolidated the two Applications.

7On October 11, 2012, the respondents filed responses opposing the applicant’s request to add Darko Vranich and Chris Rudan as new individual respondents. The respondents submit that there are no allegations about the conduct of either proposed individual respondent, nor are there any allegations in relation to these individuals for which the corporate respondent would not be responsible. The respondents assert neither individual is involved in the day to day operations of the business and, in particular, Chris Rudan does not hold an ownership interest in the business. The respondents submit that adding these individuals as respondents is unnecessary and improper.

8On October 11, 2012, the respondents filed a Request for an Order during Proceedings asking the Tribunal to remove the existing two individual respondents, namely Doug Boyce and Elaine Saunders, from the first Application. The respondents submit that all of the allegations in relation to these individuals are within the scope of their responsibilities for the corporation and that there are no allegations for which the corporate respondent would not be held responsible. In addition, there are no remedies that the corporate respondent could not satisfy.

9The applicant filed a Reply on November 9, 2012. The applicant also filed for Request an Order during Proceedings asking the Tribunal to reactivate the Application. The applicant indicates that he seeks that the Application continue without mediation

Request to Reactivate

10A request for reactivation applies to applications that have been deferred under Rule 14 of the Tribunal’s Rules of Procedure (“Rules”). By making this request to reactivate, it appears that the applicant may be under a misapprehension that the Application is deferred because the previous Interim Decision directed that, before scheduling a Tribunal mediation, the Tribunal would wait approximately three weeks for a status update from the parties regarding a mandatory settlement conference in the parties’ Small Claims Court matter. The Tribunal did not order the Application to be deferred. As such, I find it is unnecessary to deal with the applicant’s request to reactivate.

11The Small Claims Court mediation is completed and the applicant has indicated that he does not wish to engage in further mediation.

12Given the applicant’s position, the Tribunal will not schedule a mediation and will now address the parties’ preliminary requests.

Requests to Amend

13Rule 1.7(c) of the Tribunal’s Rules states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

14The applicant requests that the Tribunal add Darko Vranich and Chris Rudan as respondent parties. The applicant asserts that these proposed respondents are the owners of the business. The applicant contends that the proposed respondents should be added to the Application because they were complicit in the alleged discrimination and should have been aware of their human rights responsibilities as owners.

15In when determining a request to add a respondent, the Tribunal in Smyth v. Toronto Police Services, 2009 HRTO 1513, stated that the following three questions should be considered:

(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?

16The first question involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. In considering the second question, 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 organizational respondent which is able to take responsibility for the alleged conduct and whether the conduct of the proposed individual respondent is a central issue in the proceedings. For the third question, 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.

17I find that the applicant has failed to satisfy the Smyth criteria. It appears that the applicant’s primary concern is that the proposed respondents, as owners of the business, should not avoid accountability and liability for what allegedly took place in business. Other than emphasizing corporate responsibility, the applicant does not make specific allegations about any particular discriminatory conduct by Darko Vranich and/or Chris Rudan. The applicant asserts that these individuals were “complicit” in the alleged discrimination and should be aware of their human rights obligations. This alleged involvement of Vranich and Rudan in failing to uphold the applicant’s rights may be fully explored at the hearing as a potential basis for the corporate respondent’s alleged liability. I am not persuaded that there is a real risk that the corporate respondent cannot adequately address the allegations. Further, I am not satisfied that it is necessary to add these individuals to achieve any remedial order.

18In summary, I do not find it is appropriate to add these individuals as respondent parties. The applicant does not contend that the corporate respondent cannot fully respond to the allegations and to provide the appropriate relief should an infringement of the Code be found. I do not accept that “compelling juridical reasons” exist in favour of adding the proposed respondents. See Sigrist and Carson v. London District School Board, 2008 HRTO 14.

19The applicant requests that the Tribunal allow an amendment to the Application with respect to the compensation claim. The applicant seeks to increase general damages and also increase the period of time for which he seeks lost wages. I find that the applicant should be permitted to amend his Application to clarify the damages sought. In previous decisions, the Tribunal has allowed amendments to remedial claims prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050.

20I see no reason to deny the request to amend the monetary remedy in this regard. The Application is amended to increase the quantum of general damages and the period of time for which lost wages are sought as set out in the applicant’s Request for an Order During Proceedings. This amendment is made without any determination by the Tribunal as to the appropriateness of the remedies claimed.

Request to Remove Individual Respondents

21The respondents ask the Tribunal to remove the existing two individual respondents, namely Doug Boyce and Elaine Saunders. The respondents assert that there are no allegations in the Application about the conduct of these individuals for which the corporate respondent could not be held responsible or provide remedial satisfaction.

22The applicant asserts that both individuals, as managers of the corporate respondent, denied him appropriate accommodation and should be required to pay monetary compensation for their discriminatory conduct.

23Pursuant to Rule 1.7 (b) of the Tribunal’s Rules, the Tribunal has the power to add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal identified factors to consider when determining whether a personal respondent should be removed (para. 5):

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

24The applicant appears to argue that the individual respondents must remain as parties to the Application because they allegedly made decisions and took actions regarding his workplace duties which were discriminatory. While the applicant’s allegations relate to certain interactions with Boyce and Saunders in regards to his work and accommodation requests, there is no suggestion that the individual respondents acted in their personal capacity or outside the course of their job responsibilities on these occasions.

25Based on the respondents’ submissions, it appears that the corporate respondent is prepared to accept any potential liability on behalf of the individual respondents and is in a position to respond to the allegations and, if required, remedy any violations. The applicant has not asserted any specific prejudice if the individual respondents are removed and I am unable to discern any compelling reason to continue proceedings against the individual respondents.

26Having considered the Tribunal’s the approach to whether an individual is properly named as a personal respondent, I conclude that in the circumstances of this case the individual respondents should be removed from the Application. Consequently, the respondents’ request is granted.

ORDER

27The Tribunal orders as follows:

(i) The applicant’s request to amend the Application with respect to damages is granted;

(ii) The applicant’s request to add the proposed respondents is denied; and

(iii) The respondents request to remove individual respondents Boyce and Saunders is granted and the style of cause is amended accordingly.

28I am not seized of this matter.