J.D. v. The Ultimate Cut Unisex, 2013 HRTO 1537

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.D. Applicant

-and-

The Ultimate Cut Unisex, Rocco Valentini and Paul Portelli Respondents

A N D B E T W E E N:

E.D. by her next friend M.D. Applicant

-and-

The Ultimate Cut Unisex, Rocco Valentini and Paul Portelli Respondents

A N D B E T W E E N:

Cheri Davies Applicant

-and-

The Ultimate Cut Unisex, Rocco Valentini and Paul Portelli Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: September 13, 2013 Citation: 2013 HRTO 1537 Indexed As: J.D. v. The Ultimate Cut Unisex

INTRODUCTION

1These Applications were originally filed by J.D. on May 5, 2011, by E.D. on June 1, 2011 and by Cheri Davies on January 27, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and allege that the personal respondent, Mr. Valentini, sexually harassed the applicants and made sexual advances towards them during their employment in 2010 and 2011. In addition, the Application of Cheri Davies describes reprisal. All three Applications name Mr. Valentini as well as the organization for which they thought they worked and which they believed existed at the time they filed their Applications. The hearing of the Applications is scheduled to begin on October 21, 2013 with a second day scheduled for November 4, 2013.

REQUEST TO ADD MR. PORTELLI

2The applicants seek to add Paul Portelli as a personal respondent. The applicants personally served Mr. Portelli with their Applications and all documents relating to them, including the May 23, 2013 Interim Decision, 2013 HRTO 891, which alerts Mr. Portelli to the fact that the applicants’ request to add him would be heard by the Tribunal at a Preliminary Hearing on August 19, 2013.

3Neither the respondents nor the proposed respondent appeared at the Preliminary Hearing. The applicants made their submissions on the Request through their counsel. They claim that the organizational respondent has ceased to operate and the hair salon in which they worked disappeared in 2012. The applicants fear that should they succeed in their allegations against the organizational respondent, they will be unable to collect any remedy awarded against it.

4The applicants argue that Mr. Portelli should be added as a party because any remedy ordered against the organizational respondent could be ordered against him as a partner of the organizational respondent. Mr. Portelli, they allege, was present during the alleged sexual harassment by Mr. Valentini. Mr. Portelli knew what his partner was doing in violation of the Code, but he failed as an employer to investigate or to protect the applicants. Ms. Davies’ Application additionally alleges that Mr. Portelli reprised against her on her last day of work when he immediately terminated her employment when she told him that Mr. Valentini sexually harassed her, and that she couldn’t tolerate it anymore.

5The applicants allege that the organizational respondent is not a sole proprietorship as indicated in the Responses completed by Mr. Valentini. Instead, it is a partnership between Mr. Valentini and Mr. Portelli given the inclusion of both names on the registration of the organizational respondent as a partnership in the 1990’s. They also point to J.D.’s Record of Employment completed by Mr. Valentini that lists as the employer, “Rocco Valentini, Paul Portelli”, and not “The Ultimate Cut Unisex” which they claim does not exist as a corporation given their counsel’s recent corporate search. Their evidence will be that throughout their employment they heard Mr. Portelli and Mr. Valentini refer to each other as partners. While they did not receive any T4 slips, they believe that their paycheques were signed by both men, and will try to obtain copies of paycheques to confirm.

6The applicants argue that Mr. Portelli has had ample notice of the proceedings because he may be deemed to have received the Application when it was initially delivered to the business address of the partnership. In addition, they argue that once they discovered that the organizational respondent was not a corporation, but a partnership, they made many attempts to deliver the pleadings to Mr. Portelli, as well as Tribunal documents, until he was recently served personally with them.

7The applicants argue that when they filed the Applications, not naming Mr. Portelli, they did not know that the business would become inoperative and close in 2012. They did not know that the business would have no assets. They argue that their delay in adding Mr. Portelli was in good faith given that they believed Mr. Valentini’s assertion in the Responses that he was the sole owner of the organizational respondent until their counsel discovered differently in conducting a corporate and partnership search. Their Request to add Mr. Portelli was made as soon as they discovered the organizational respondent was a partnership and unlikely to be capable of providing any remedy. They argue that delay in adding Mr. Portelli has caused no prejudice to him.

ANALYSIS

8The Tribunal 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?

9Ms. Davies alleges that the proposed personal respondent made the decision to terminate her employment early as reprisal for reporting sexual harassment by his partner. All the applicants allege that the proposed personal respondent knew that his partner was sexually harassing them, but failed to investigate or protect them. Should these facts be proven, they could lead to a finding that Mr. Portelli is responsible for the alleged violation of the applicants’ rights to a workplace free from sexual harassment and protection against harassment from their employer. As well, the allegation with regard to Ms. Davies’ dismissal, if proven, could support a finding of reprisal against Mr. Portelli.

10While there is an organization named as a respondent, it has not participated in the proceedings since Mr. Valentini filed Responses on its behalf in two of the Applications, and it appears that it no longer operates. Any remedy ordered against it may be unenforceable by the applicants unless they are able to obtain such remedy against the partners, Mr. Valentini and Mr. Portelli. As stated in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), “the focus of human rights legislation is to provide an effective remedy to the complainant. One measure of effectiveness is the degree to which the damages can be collected.” Ensuring that an applicant is able to enforce a decision and obtain a remedy is a compelling reason to add the proposed personal respondent given that a remedy may be ordered for the applicants if they are successful in these Applications.

11There are no submissions before me to indicate that the proposed personal respondent would suffer prejudice in being added as a respondent to these Applications, and I can see none.

12With respect to whether seeking to add Mr. Portelli more than one year after the alleged discrimination raises any conflict with s.34 of the Code, I agree with the applicants that their delay in naming Mr. Portelli was in good faith because they only recently discovered the status of the partnership. Given the timely filing against Mr. Portelli’s partnership, and the delivery of the Application to the place of the partnership’s place of business, I can see no prejudice to Mr. Portelli who appears to have received the Applications long ago. Certainly, Mr. Portelli, has chosen not to participate in the adjudication of this request to add him, so that there are no submissions before me to indicate any prejudice caused by delay.

13Without deciding the allegations of discrimination, harassment and reprisal, I grant the requests to add the proposed personal respondent.

ORDER

14The Tribunal orders as follows:

Mr. Portelli is added as a personal respondent to the Applications and the style of cause is amended accordingly.

DIRECTION

15By September 27, 2013, Mr. Portelli must deliver to the applicants’ counsel and file with the Tribunal his Responses to these Applications which the applicants have now served on him personally.

16By October 11, 2013, Mr. Portelli must deliver to the applicants’ counsel all documents in his possession that are arguably relevant to the Applications as well as summaries of what his witnesses, if any, shall say at the hearing that shall begin on October 21, 2013. Also by October 11, 2013, he must file with the Tribunal and deliver to counsel for the applicants the witness summaries and copies of any documents upon which he intends to rely at the hearing.

17The applicants shall testify on October 21, 2013, and Mr. Portelli and any witnesses he wishes to call must be prepared to testify on the second day of the hearing, November 4, 2013.