Powell v. Sans Sole Tanning Salon Inc., 2012 HRTO 459

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ashley Powell

Applicant

-and-

Sans Sole Tanning Salon Inc. and Eric Chiodi

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: March 5, 2012

Citation: 2012 HRTO 459

Indexed as: Powell v. Sans Sole Tanning Salon Inc.

1The Applicant filed an Application on April 27, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging sex discrimination, sexual solicitation and/or advances, and reprisal with respect to employment.

2The Application was initially filed only as against the individual respondent, who is identified in the narrative as the owner of Sans Sole Tanning Salon Inc., the tanning salon where the applicant worked. The applicant alleges that the individual respondent subjected her to sexual harassment and reprisal for resisting his advances.

3The individual respondent filed a Response on July 8, 2011, wherein he identifies himself as the President of Sans Sole Tanning Salon Inc., the corporate employer. The individual respondent denies the allegations of sexual harassment and alleges that the applicant demonstrated a negative attitude and poor work performance.

4Along with the Response, the individual respondent filed a Request for an Order During Proceedings (“Request”) stating that the identity of the respondent is inaccurate and asking that the Application be amended to reflect the employer, Sans Sole Tanning Salon Inc., as the proper respondent to the Application. The Request states that the individual respondent is an employee of the proposed respondent and that Sans Sole Tanning Salon Inc., as the employer, is the proper respondent because it had complete control over the applicant’s employment.

5The applicant filed a response to the Request agreeing that the corporate employer should be added as a respondent and opposing the removal of the individual respondent.

DECISION

6Rule 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. Tribunal jurisprudence has articulated the following factors with respect to adding 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?

See Smyth v. Toronto Police Services, 2009 HRTO 1513

7In considering whether it would be fair, in all the circumstances, to add Sans Sole Tanning Salon Inc., I note that the parties are in agreement that the corporate employer should be added a respondent. There does not appear to be any issues with respect to prejudice and, based on the materials in the file and without deciding the issues, there appears to be some factual and legal bases upon which it could be argued that the employer has liability under the Code. As such, it is appropriate to add the corporate employer, Sans Sole Tanning Salon Inc., as a respondent to this Application.

8While the Request is not explicitly framed as a request to remove the individual respondent, the thrust of the respondent’s submissions appears to imply such a request.

9The Tribunal has considered the analytical approach stated in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), at paras. 4-5 in deciding whether to remove an individual respondent from an application. I am satisfied, having considered the factors outlined in Persaud, that the circumstances of this Application do not support the removal of the individual respondent.

10I find there is a compelling basis to continue with the individual respondent as a named party in this proceeding. Tribunal jurisprudence has held that it is appropriate to continue the proceeding as against a personal respondent where it is the individual conduct of the personal respondent that is a central issue. See Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155, and Bianca v. Maritime Travel, 2010 HRTO 1077. The applicant has made extensive and detailed allegations against the individual respondent involving alleged harassment for which he may be found to be personally liable. In the circumstances, to the extent that the Request may have included a request to remove the individual respondent, then that request is denied.

11In conclusion, the Tribunal orders as follow:

a) Sans Sole Tanning Salon Inc. is added as respondent party to this Application and the style of cause be amended accordingly;

b) within seven days of the date of this Interim Decision, Sans Sole Tanning Salon Inc. is required to write to the Tribunal, copied to the applicant, confirming whether or not it adopts the individual respondent’s Response or seeks to file a separate Response;

c) if Sans Sole Tanning Salon Inc. seeks to file a separate Response, it is required to file with the Tribunal a Form 2 Response within 35 days of the date of this Interim Decision; and

d) the applicant may file a Reply within 14 days of receipt of Sans Sole Tanning Salon Inc.’s Response.

12I am not seized of this matter.