Kovacevic v. ECE Distribution, 2012 HRTO 390

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brooke Kovacevic Applicant

-and-

ECE Distribution Ltd. o/a Branded Merchandise, Cooney Promotions Inc. and Darren Watson Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: February 24, 2012 Citation: 2012 HRTO 390 Indexed as: Kovacevic v. ECE Distribution

WRITTEN SUBMISSIONS BY

Brooke Kovacevic, Applicant | Janina Fogels, Counsel ECE Distribution Ltd. o/a Branded Merchandise, Respondent | John A. Annen, Counsel Cooney Promotions Inc., Proposed Respondent | John A. Annen, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address the applicant’s request to add a party to her Application.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 15, 2011, which alleged that the respondents subjected her to sexual harassment, sexual advances, and reprisals with respect to employment. In her Application, she named ECE Distribution Ltd. o/a Branded Merchandise (“ECE Distribution”) as an organization respondent and Darren Watson as an individual respondent.

3Mr. Watson filed a Response on October 5, 2011, and ECE Distribution filed a Response on December 7, 2011, which denied the allegations of sexual harassment, sexual advances, and reprisals. In its Response, ECE Distribution also denied that it was in an employment relationship with the applicant. Rather, it stated, the applicant worked as an independent contractor with Cooney Promotions Inc. (“Cooney Promotions”).

REQUEST TO ADD A PARTY

4The applicant filed a Request for an Order During Proceedings on December 16, 2011, which requested that the Tribunal add Cooney Promotions as an organization respondent to her Application. In her submissions, she stated that adding Cooney Promotions as a respondent would not result in prejudice to the other parties because the proceeding is at an early stage.

5ECE Distribution filed a Response to the Request on December 29, 2011, which consented to the Request, but only on the condition that the applicant amend her claim to disclose a cause of action and clarify whether she is pursuing a claim against ECE Distribution or Cooney Promotions.

6Cooney Promotions filed a Response to the Request on January 12, 2012, which opposed the Request on the basis that the Application fails to disclose a genuine issue against Cooney Promotions. Attached to the Response were a Record of Employment (“ROE”) that Cooney Promotions issued to the applicant, and a complaint letter that the applicant sent to Cooney Promotions following the termination of her employment.

ANALYSIS

7In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following test for adding a respondent at para. 12:

(...) 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?

The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. 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, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

8In the case at hand, only the first and third questions are applicable because the applicant is proposing the addition of an organization respondent.

9With respect to the first question, the threshold for adding a party at a preliminary stage of the proceeding is a low one; the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant’s rights under the Code. On the other hand, although the threshold is low, on the face of the record, there must be a higher standard than mere puffery or frivolous allegations. This must be so, not only to protect a proposed respondent, but also to demonstrate fairness. See Marchese v. Fortinos, 2009 HRTO 25, at para. 12.

10In my view, the applicant’s Request meets the first part of the test because there are allegations in the Application that could support a finding that Cooney Promotions violated the Code. Specifically, the applicant alleged that her supervisor subjected her to sexual harassment and advances, and when she did not entertain his advances, he subjected her to a reprisal by having her employment terminated. She also alleged that the owner of the company subjected her to a reprisal by withholding her final pay and ROE after she complained to him about the sexual harassment and advances.

11In my view, the applicant’s Request also meets the third part of the test because it was made at an early stage of the process, there is no evidence that adding Cooney Promotions as a respondent will result in prejudice to the other parties, and there will likely be a need for a remedial order against Cooney Promotions if the Application is allowed.

12The Tribunal therefore orders that Cooney Promotions Inc. be added as an organization respondent to the Application. The style of cause shall be amended accordingly.

NEXT STEPS

13The Tribunal orders Cooney Promotions to file a Response to the Application with the Tribunal within 35 days of this Interim Decision. The applicant may deliver to the other parties and file a Reply 14 days after receiving the Response.

14The applicant’s materials do not clearly explain why ECE Distribution should continue to be named as an organization respondent. Furthermore, Cooney Promotions disclosed documents that show that Cooney Promotions, not ECE Distribution, issued her an ROE, and that the applicant sent a letter of complaint to Cooney Promotions, not ECE Distribution, about the alleged sexual harassment and advances following the termination of her employment/contract.

15In these circumstances, within two weeks of this Interim Decision, the applicant shall file written submissions, including supporting documents, addressing why the Application against ECE Distribution should not be dismissed. Within four weeks of this Interim Decision, the respondents shall file written submissions, including supporting documents, in response.

16I am not seized of this matter.