HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dhona Maria Hardeen
Applicant
-and-
Splash International Marketing Inc., Vijay Madoo and Makesh Samoondar
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Hardeen v. Splash International Marketing Inc.
WRITTEN SUBMISSIONS
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Dhona Marie Hardeen, Applicant ) Jo-Ann Seamon, Counsel
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1524700 Ontario Inc. o/a ) Sharma Sheikh, Counsel
Connect Personnel, Respondent )
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Makesh Samoondar, Respondent ) Salma Sheikh, Counsel
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1This is an Application filed February 11, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of sex and sexual solicitation in employment. The organizational respondents filed Responses to the Application and the applicant subsequently filed a Reply and a Request for Order (“Request”) seeking to add Makesh Samoondar as an individual respondent in these proceedings. 1524700 Ontario Inc. o/a as Connect Personnel (“Connect”) has filed a Response. Further, both Connect and the proposed respondent are opposed to the Request
2The Tribunal has held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that 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 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, 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.
3The applicant was an employee of Connect, an employment agency, in January 2010. She was assigned to work at Splash International Marketing Inc. (“Splash”). The applicant worked at this workplace until February 15, 2010. The applicant alleges that on February 15, 2010 she was sexually harassed and solicited by Vijay Mahood, an employee of Splash. The applicant alleges that she complained about his behaviour to officers of Splash. She also states that she reported what had happened to the owner of Connect, Sam; Sam's wife; Ramesh, the dispatcher; as well as the secretary/receptionist Crystal. The applicant alleges that Connect did not adequately investigate her complaint to them.
4The applicant seeks to add the individual respondent in his capacity as the owner of an unincorporated business operating under the name “LA Staffing” (“Staffing”). The applicant states that the applicant became an employee of Staffing in February 2010 although she was not aware of this fact at the time. The applicant states that she only became aware that Connect ceased operating in February 2010 and was dissolved in 2011 when the corporate respondent filed its Form 2 Response to this Application.
5The applicant states that documents disclosed during this proceeding reveal that the proposed respondent was operating another employment agency under the Staffing name. The applicant states that she has conducted corporation and business name searches on Staffing and has been unable to find any corporation or registered business under or affiliated with this name. The applicant states that it is a reasonable conclusion that Staffing is not a corporation, therefore as the owner of an unincorporated business personal liability attaches to its owner, the personal respondent. The applicant states that if Makesh Samoondar is added as a respondent, it is appropriate for Connect to be removed as a party because there is a more appropriate party to the proceeding.
6The proposed respondent and Connect dispute these facts. They state that the proposed respondent entered into an agreement with one of his employees, Krystal Humphrey, on February 2, 2010. Ms. Humphrey had been employed by Connect as a receptionist. The main points of the agreement as stipulated by the proposed respondent were as follows:
Connect was to wind down and cease operation as of February 28, 2012.
The commercial lease would be assigned to Ms. Humphrey by March 1, 2010.
Connect would terminate all employees by February 28, 2010. It would be at the sole discretion of the employees to enter into new employment agreements with Ms. Humphrey.
Connect would provide Ms. Humphrey with all contacts for Employer clients of Connect with whom she was at liberty to enter into new service agreements.
The payment for all account receivables due and owing from employer clients for the month of February would be redirected to Ms. Humphrey as part consideration of her taking assignment of the commercial lease.
Payment of all wages for the employees of Connect for the month of February would remain the responsibility of Connect.
7Ms. Humphrey established a numbered company to operate the business as Staffing. The proposed respondent states that Ms. Humphrey was the sole Director of the numbered company and provided documentation to support that contention. The proposed respondent is not an officer or director of Staffing and played only a minor consultative role in its operations until March 2011, when he took a part-time sales position with the business. The proposed respondent states that Connect ceased operating on February 28, 2010, but pursuant to the agreement with Ms. Humphrey all of its employees including the applicant were paid by Connect through the month of February 2010. Connect was dissolved in January 2011.
8The proposed respondent states that he is not a proper personal respondent in these proceedings and further, as Connect no longer exists it should be removed as a respondent in this proceeding. Alternatively the respondents state that if the Application as against Connect is not dismissed, the proposed respondent was at all material times acting in his capacity as principal of Connect and as such Connect is vicariously liable for his actions.
9The proposed respondent states the applicant claims that Connect failed in its duty to investigate her claim of sexual harassment by an employee of Splash. The proposed respondent states that as Connect no longer exists its obligation to investigate is moot. Alternatively the proposed respondent states that he should not be added as a personal respondent as the duty to investigate was met by Connect.
10The Application contains allegations that the proposed respondent, who was the principal of Contact, failed to investigate a complaint of sexual harassment. The proposed respondent offers a defense that he took the applicant’s allegations seriously and did what he could for her in the circumstances. However, the facts alleged by the applicant, if proven, could support a finding that Connect violated the applicant’s rights under the Code. The difficulty arising here is that the organizational respondent no longer exists and accordingly there is no organizational respondent which can accept responsibility for the alleged actions or inactions of the proposed respondent.
11The theory underlying the applicant’s Request is that the proposed respondent, operating as Staffing, was her employer in February 2010. The proposed respondent has indicated that Connect remained the applicant’s employer through February 2010. The documentation supplied by the proposed respondent tends to support that contention. The documents relied on by the proposed respondent also tend to support his submission that he played no role in the operations of Staffing. Despite these submissions, I am satisfied, having regard to the factors set out above in Smyth and Persaud, that it would be appropriate to add the proposed individual respondent as a party to the proceedings.
12I come to this conclusion for the following reason. Connect appears to have been the applicant’s employer at the material times and may have had obligations under the Code. As previously indicated the applicant’s allegations in this regard, if proven, may establish that those obligations under the Code were not met. Connect no longer exists and should be removed from the Application. However, the proposed respondent was, according to the a Response to the Application (Form 2) filed on behalf of Connect, the sole director and president of the corporation. Based on the material filed by the parties I find that the proposed respondent, as the sole director and president, was Connect. In these particular circumstances I see no reason why the proposed respondent should be shielded from potential liability by his pointing to the corporate vehicle through which he operated the business that employed the applicant and which as sole director and president he caused to be dissolved at some point after the events in question.
13The proposed respondent also states that the adding of a new respondent at this stage of the proceeding will cause delay and thereby prejudice the fair, just and expeditious adjudication of the application. Although it is not clear why it took as long as it did for the applicant to bring this Request, I am not satisfied that the addition of the individual respondent will cause any delay in the proceeding. To begin with the hearing of this case is scheduled to take place on September 26 and 27, 2012. I also note in this regard that while the proposed respondent’s corporate vehicle no longer exists it was able to file a Form 2 responding fully to the Application. In the circumstances it may not be necessary for the personal respondent to file a further Response, and in any event the hearing is five months away. Should the individual respondent wish to file a Form 2, he may do so within 28 days of today’s date; alternatively he can simply adopt the Response of Connect.
Order
14The Tribunal orders the following:
The applicant’s Request for Order is granted and the style of cause is amended accordingly.
In the event that the individual respondent Samoondar wishes to deliver and file a Form 2 Response, he may do so within 28 days of the date of this Interim Decision. Alternatively me may adopt the Form 2 Response filed by Connect.
As the corporate respondent Connect has been dissolved it is removed from the Application and the style of cause amended accordingly.
15I am not seized.
Dated at Toronto, this 17th day of April, 2012.
“Signed by”
David Muir
Vice-chair