HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derek Walton
Applicant
-and-
Greenestone Clinic Muskoka Inc.
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Walton v. Greenestone Clinic Muskoka Inc.
WRITTEN SUBMISSIONS
Derek Walton, Applicant
Kate Sellar, Counsel
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 disability. Specifically, the applicant alleges that the respondent terminated his employment while he was on a medical leave of absence.
2This Interim Decision addresses a Request for an Order During Proceedings that the applicant filed on July 18, 2013 (the “Request”). The applicant seeks an order adding S.L., whom he identifies as the respondent’s president, as an individual respondent and 1352546 Ontario Limited as an organizational respondent. The respondent has not responded to the Request and the time for doing so has passed.
3The Tribunal held in Smyth v. Toronto Police Services Board, 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?
PROPOSED INDIVIDUAL RESPONDENT
4The applicant alleges that the proposed individual respondent was involved in the decision to terminate his employment, which arguably amounts to a violation of the Code. The applicant has not, however, provided a compelling reason for adding Mr. Leon as an individual respondent. The applicant submitted that following the Tribunal’s decision in Madhani v. Sears Canada Inc., 2013 HRTO 290, a “compelling reason” is no longer necessary to add an individual as a respondent. I note, however, that the Tribunal has continued to apply this criteria set out in Smyth following the Madhani decision and in my view whether there is a compelling reason to add an individual respondent remains a relevant consideration. See for example Marsden v. Halton Condominium Corporation No. 41 (Board of Directors), 2013 HRTO 1462, Savin v. Granite Club Ltd., 2013 HRTO 628, Costigane v. Nyood Restaurant, 2013 HRTO 648. The Application contains no allegations of harassment under sections 5(2), 7(2) or 7(3) for which the organizational respondent would not be vicariously liable pursuant to section 46.3 of the Code or allegations indicating that the proposed respondent acted outside the scope of his employment. There is no suggestion that the current respondent might be unable to affect any remedies ordered by the Tribunal or any other reason that would indicate that adding the proposed respondent is necessary. I also note that the applicant consented to the removal of individual respondents named in the Application who were also identified as managerial personnel who took part in the decision to dismiss the applicant. See Walton v. Greenestone Clinic Muskoka Inc., 2013 HRTO 204. In these circumstances, I am not satisfied that adding the proposed respondent is appropriate at this time.
PROPOSED ORGANIZATIONAL RESPONDENT
5The applicant submitted that based on the results of a corporate search conducted on his behalf it appears that there is no business operation under the name “Greenestone Muskoka Clinic Inc.” The applicant submitted that 1352546 Ontario Limited may be the proper name for his employer and therefore should be added as an organizational respondent, subject to further information the respondent may provide regarding its business registration.
6The applicant did not explain why he believes the proposed organizational respondent “may be” the legal identity of the organizational respondent and in my view has not provided an adequate basis for adding 1352546 Ontario Limited as a respondent. In my view, the most fair, just and expeditious procedure is to direct the respondent to clarify its legal identity / business registration.
ORDER
7The Tribunal orders as follows:
The applicant’s Request is denied; and,
Within 14 days of the date of this Interim Decision, the respondent shall provide, in writing, a description of its legal name / business registration.
8I am not seized.
Dated at Toronto, this 5th day of September, 2013.
“Signed by”
Douglas Sanderson
Vice-chair```