Mehjazi v. SanPaul Investments Limited, 2013 HRTO 1167

Human Rights Tribunal of Ontario

Between:

Rim Mehjazi Applicant

-and-

SanPaul Investments Limited o/a Walking on a Cloud Respondent

Interim Decision

Adjudicator: Dawn J. Kershaw Date: July 4, 2013 Citation: 2013 HRTO 1167 Indexed as: Mehjazi v. SanPaul Investments Limited

Written Submissions

Rim Mehjazi, Applicant Self-represented

SanPaul Investments Limited o/a Walking on a Cloud, Respondent Laura Cassiani, Counsel

Katie O’Flanagan, Respondent Laura Cassiani, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and sex.

2The respondents request that the personal respondent, Ms. O’Flanagan (“personal respondent”) be removed as a respondent in the Application.

3The applicant did not respond to the request.

Facts and Analysis

4Section 1.7(b) of the Tribunal’s Rules of Procedure states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add or remove a party.

5The Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31 sets out at paras. 4 - 5 the principles for removing personal respondents:

1. Is there 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 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?

6The applicant alleges that she told the respondent, Katie O’Flanagan (“personal respondent”), who was the Human Resources manager for the respondent, SanPaul Investments Limited o/a Walking on a Cloud (“corporate respondent”) about allegedly improper conduct by her store manager, including sexual harassment of her. The personal respondent conducted an investigation into the allegations and concluded that for the most part they were unfounded.

7The applicant alleges in her Application that the investigation done by the personal respondent was inadequate and unfair.

8The respondent submits as follows:

1. the applicant alleges that the corporate respondent is liable for the same conduct as the personal respondent;
2. there is no allegation that the personal respondent was acting outside of the scope of her employment;
3. the corporate respondent assumes responsibility for her conduct;
4. there is no issue with respect to the ability of the corporate respondent to respond to or remedy the alleged Code infringement;
5. the conduct of the personal respondent is not central to the applicant’s allegations; and
6. there would be no prejudice to the applicant if the personal respondent was removed.

9The Tribunal finds the respondents’ submissions persuasive.

10Other than the allegation that the personal respondent did not investigate the matter adequately, the applicant made no allegations that the personal respondent’s conduct was central to the allegations in this Application.

11The Tribunal acknowledges the applicant’s statement that the personal respondent at some point stated that the applicant, because of her “culture” had misunderstood the store manager’s behaviour, but she provided no more details in her Application and no response to the request that the personal respondent be removed. Specifically, she made no allegation that the personal respondent acted outside the scope of her employment when investigating the matter even though the respondents took this position in their request to remove the personal respondent and she had an opportunity to respond to this.

12The allegations that the investigation was unfair or inadequate speak to the potential liability of the corporate respondent, and the corporate respondent assumes responsibility for the actions of the personal respondent.

13There would be no prejudice to the applicant if the personal respondent was removed.

14The Tribunal orders that the personal respondent be removed, and the style of cause amended accordingly.