HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lillian Chung
Applicant
-and-
Angela Wai Ching Luk Fung o/a Star Kitchen Fast Food, Angela Chung
and Deng Zhong Lin
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Chung v. Angela Wai Ching Luk Fung
1The applicant filed this Application on August 3 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to employment on the basis of sex.
2The applicant alleges that she was sexually harassed and solicited by the chef (a proposed personal respondent) at the restaurant (the corporate respondent) where she worked. The applicant alleges that the owner of the restaurant (personal respondent Fung) terminated her employment because she complained about the harassment.
3At the time of filing her Application, the applicant identified the chef as “Mr. Deng” in her narrative and named Mr. Deng as an additional personal respondent in answering Question 4 of the Application. The applicant also filed a Request for Order During Proceedings seeking that the corporate respondent provide Mr. Deng’s full name.
4On September 27, 2011, the corporate respondent and personal respondent Fung filed a Response and provided Mr. Deng’s full name, specifically Deng Zhong Lin. The respondents advised that he no longer worked for the corporate respondent.
5On December 22, 2011, the applicant filed a Request for Order During Proceedings (“Request”) seeking that Deng Zhong Lin be added as a respondent party to the Application and that the corporate respondent be required to provide the last known address for the proposed respondent so that the Application can be served upon him.
6The respondents filed submissions opposing the applicant’s Request to add Deng Zhong Lin. The respondents submit that Deng Zhong Lin had no authority to terminate the applicant and was not responsible for the investigation of her complaint.
7On January 5, 2012, the Tribunal issued a notice of hearing to the parties. Subsequently, counsel for the applicant wrote to the Tribunal requesting that the hearing be rescheduled because of his unavailability and that the Tribunal determine the applicant’s Request prior to re-scheduling the hearing.
ANALYSIS
Request to Add Personal Respondent
8Rule 1.7(b) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party. The Tribunal’s test for adding respondents has been articulated at paragraph 12 in the Tribunal’s Decision in Smyth v. Toronto Police Services Board, 2009 HRTO 1513:
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?
- Would it be fair, in all the circumstances, to add the proposed respondent?
9Without deciding the issues, it appears that it would be fair to add the proposed respondent. Based on the information in the file, there is little doubt that factors 1 and 3 are to be answered in the affirmative.
10With respect to the first factor in Smyth, the allegations, if proven, could support a finding Deng Zhong Lin violated the applicant’s rights to be free of sexual harassment and/or solicitation in the workplace.
11With respect to the third factor of the test, the applicant made clear at the time of filing her Application that she intended to proceed against Deng Zhong Lin as an additional personal respondent. The respondents have been aware from the outset that the applicant impugned Deng Zhong Lin’s actions and that there was every intention to include him as a respondent party.
12With respect to the second factor of the Smyth analysis, the question remains whether there is a compelling reason to include Deng Zhong Lin in light of the fact that the corporate respondent is also a respondent in this matter.
13In their Response, the corporate respondent and the owner of the restaurant deny the allegations and dispute liability. The fact that the existing respondents have not accepted liability for the proposed respondent and the issues raised in the Application could result in a finding of liability against Deng Zhong Lin are compelling reasons to add him as respondent to the Application. In addition, the applicant has indicated that she seeks a public interest remedy of human rights training for the proposed respondent in the event that a finding of discrimination is made with respect to him.
14In these circumstances, I find that this is an appropriate case to exercise my discretion to add Deng Zhong Lin as a respondent to this Application.
Request for Last Known Address
15The applicant also seeks that the existing respondents be required to provide the last known address for Deng Zhong Lin. The existing respondents have confirmed that Deng Zhong Lin is no longer their employee at the time the Application was delivered and presumably this means he did not receive a copy of the Application.
16Rule 6.6(b) of the Tribunal’s Rules of Procedure provides that the Tribunal will not deal with an application in respect of a respondent who cannot be contacted at the contact information provided by the applicant. As such, the applicant requires Deng Zhong Lin’s last known address in order for delivery of the Application. The Tribunal has in previous decisions required corporate respondents to provide last known addresses for personal respondents no longer in the company’s employ. See: Grant v. Dura Automotive Systems of Canada, 2009 HRTO 10; Letourneau v. Jenny Craig Canada, 2011 HRTO 342 and Khudabaksh v. Optima Communications International Inc., 2012 HRTO 35.
17Rule 1 of the Tribunal’s Rules states that the Tribunal may:
Require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any date storage, processing or retrieval device of system, to produce the information in any form. (See also s. 43(3) of the Code.)
18In the circumstances of this case, I find it is appropriate to require the existing respondents to provide Deng Zhong Lin’s last known address in order to facilitate delivery of the Application.
ORDER
19The Tribunal orders as follows:
Deng Zhong Lin is added as a respondent to this Application and the style of cause is amended to reflect the same; and
Within 7 days of the date of this Interim Decision, the corporate respondent and personal respondent Fung are directed to provide the applicant and the Tribunal with the last known addresses of Deng Zhong Lin, following which the Tribunal will deliver notice of the Application to Deng Zhong Lin at the addresses provided; and
The Tribunal will reschedule the hearing.
20I am not seized of this matter.
Dated at Toronto, this 14th day of February 2012.
”signed by”
Ena Chadha
Vice-chair```