Morris v. 2157689 Ontario Inc., 2013 HRTO 1849

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Morris

Applicant

-and-

2157689 Ontario Inc. o/a Plaza Kia of Thornhill, Rick Bocher, Allan Riahi and Gary Goodman

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: November 4, 2013 Citation: 2013 HRTO 1849 Indexed as: Morris v. 2157689 Ontario Inc.

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 sexual solicitation and sexual orientation.

2The applicant made a Request for an Order During Proceedings to amend her Application as follows:

a. To add the ground of disability;

b. To add a claim for reprisal;

c. To add three personal respondents;

d. To include remedies of $40,000 for injury to dignity, feelings and self-respect and human rights training on disability-related discrimination including the accommodation of employees with disabilities as well as discrimination related to sex and sexual orientation for managers and staff employed by the respondent. reinstatement plus lost income.

3The applicant also asked for an order that the respondent provide the applicant with the last name and contact information for the third proposed respondent.

4The organizational respondent filed a Response to the RFOP consenting to the requests subject to relying on section 46.3(1) of the Code which provides an explicit exception to its deemed liability for the actions of its employees or officers with respect to harassment in the workplace. It identified the third named individual as Gary Goodman and provided contact information for him.

Analysis

Amendments to Add a Ground, Add Reprisal and Add Remedies

5The amendments set out in subparagraphs a, b and d of paragraph 2 are allowed on consent.

Adding Respondents

6The test for adding respondents is set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, as follows:

(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?

7With respect to the first consideration, I find that this part of the test is satisfied. There are allegations that each of the proposed respondents made comments to the applicant that, if true, could constitute sexual harassment, a breach of section 7 of the Code.

8With respect to the second consideration, I find that this part of the test also is satisfied. The organizational respondent has raised a potential issue with respect to its deemed liability for the conduct of the proposed respondents based on section 46.3(1) of the Code. Therefore, in this case the omission of the proposed respondents would bar the applicant from holding individuals who allegedly harassed her liable for their actions. In OHRC v. Farris, 2012 ONSC 3876 at para. 32, the Divisional Court confirmed:

[…] under the Code, a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to sexual harassment. Those complaints are to be brought against the individual who actually committed the harassment.

9Finally, with respect to the third consideration, I find that it is fair in all the circumstances to allow the proposed respondents to be added, for the following reasons:

a. The case is at an early stage and the proposed respondents will have sufficient notice of their participation in any hearing, and there would be no prejudice to them; and

b. the applicant was not represented by counsel when she filed her Application and was not aware of the law regarding harassment and corporate liability; and

c. if the proposed respondents are not added, the applicant may be left with no remedy for the alleged harassment.

Order

10The Tribunal orders:

a. Rick Bocher, Allan Riahi and Gary Goodman are added as personal respondents to the Application;

b. The Application is amended to include requests set out in paragraph 2a, b and d, above;

c. The Registrar will deliver the Application and this Interim Decision to the personal respondents who shall file Responses in accordance with the Rules;

d. The organizational respondent may deliver an amended Response to the applicant and the personal respondents and file it with the Tribunal within 14 days of this Interim Decision;

e. The applicant may deliver to the respondents and file an amended Reply to the amended Response, if any, and to the personal respondents’ Responses in accordance with the Rules.