Racine v. PDS Services Inc., 2013 HRTO 2124

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Connie Racine

Applicant

-and-

PDS Services Inc. and Barbara Schacher

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 30, 2013

Citation: 2013 HRTO 2124

Indexed as: Racine v. PDS Services Inc.

APPEARANCES

Connie Racine, Applicant ) Craig Foye, Counsel

PDS Services Inc., Respondent ) Michael Jaeger, Counsel

Barbara Schacher, Respondent ) Michael Jaeger, Counsel

INTRODUCTION

1This Application was filed on January 31, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability and family status.

2The Application was filed as against the “organizational respondent” named as “Dr. Victor Rupert Schacher”. The Application identified Dr. Schacher’s spouse, Barbara Schacher, as the CEO and contact person for the organizational respondent. The Application narrative contains various allegations regarding the applicant’s interactions with Barbara Schacher in the day to day operations of the clinic’s business and surrounding the termination of the applicant’s employment.

3The applicant alleges that her employment with the respondent orthodontic clinic was terminated in July 2012 after she requested a medical leave of absence arising out of traumatic circumstances involving her children. The applicant alleges that she continued to be subjected to discrimination by Ms. Schacher, her former supervisor, after the dismissal.

4The respondent filed a Response on April 16, 2013 denying the allegations of discrimination. The Response indicated that the applicant was employed by PDS Services Inc., a corporation that “provides employment-related services to Schacher Orthodontics, an orthodontic practice operated by Dr. Schacher”. The Response stated that Dr. Schacher was not the applicant’s employer. The respondent acknowledges that Ms. Schacher is a directing mind and the chief manager of the clinic. The respondent alleges that, although management of the orthodontic clinic had on-going concerns regarding the applicant’s poor work performance, the applicant was laid off due to shortage of work. The respondent denies any discriminatory behaviour occurred post-employment and submits that any comments made by Ms. Schacher after the applicant’s dismissal were on Ms. Schacher’s own personal time.

5In her Reply, filed on May 8, 2013, the applicant noted her intention to file a request to add PDS Services Inc, Schacher Orthodontics and Barbara Schacher as respondents to the Application.

BACKGROUND

6On September 19, 2013, the applicant filed a Request for an Order During Proceedings (“Request”) seeking to add “Dr. Victor R. Schacher Dental Office”, “Schacher Orthodontics” and “PDS Services Inc.” as corporate respondents, and “Barbara Schacher” as an individual respondent.

7The respondent filed a response to the applicant’s Request on September 26, 2013. The respondent submitted that only PDS Services Inc. should be added as a respondent party to this proceeding. The respondent submitted that “Dr. Victor R. Schacher Dental Office” and “Schacher Orthodontics” are not legal entities or corporations and are merely business styles/names. The respondent requested that Dr. Schacher be removed as a party and that no others be added. The respondent asked that an oral hearing be convened to deal with this motion given the issues and the allegations.

8On October 8, 2013, the Tribunal issued a Case Assessment Direction directing that, given the parties’ agreement in this regard, “PDS Services Inc.” was added as a respondent to the Application. The Tribunal also directed that a conference call hearing be convened for the purposes of hearing the parties’ submissions regarding which individuals and/or corporations should be named in the Application. The Tribunal scheduled a teleconference hearing for November 7, 2013.

9On October 24, 2013, the applicant wrote to the Tribunal indicating that she consented to the removal of “Dr. Victor Rupert Schacher” as a respondent and withdrew her request to add “Schacher Orthodontics” and “Dr. Victor R. Schacher Dental Office” as organizational respondents.

10As such, on October 25, 2013, the Tribunal issued a Case Assessment Direction directing that “Dr. Victor Rupert Schacher” be removed from the Application and that the teleconference proceed on November 7, 2013 to hear the parties’ submissions regarding whether or not Barbara Schacher should be added as an individual respondent to the Application.

11The parties were given an opportunity to file written submissions following the November 7, 2013 teleconference. The applicant filed submissions on November 21, 2013.

DECISION

12The applicant requests that her former supervisor, Barbara Schacher, be added as an individual respondent to the Application. The applicant asserts that there are a number of allegations regarding Ms. Schacher’s conduct in the workplace as a directing mind of the organizational respondent, as well as her personal conduct after the termination of employment. The Application alleges that approximately 20 days after the applicant was dismissed, Ms. Schacher disclosed private and sensitive information while in a hair salon about the applicant’s personal health and family circumstances.

13The respondent and proposed respondent oppose the request to add Barbara Schacher. They argue that the allegations against Barbara Schacher relate to standard functions of management employment. The respondent and proposed respondent deny the post-termination incident and contend that these do not come within the ambit of the Code because the alleged incident did not occur within in any employer/employee context. The respondent assures the Tribunal that, as the corporate entity, it accepts liability for the allegations as against Ms. Schacher and that there are no issues of collectability regarding financial remedies.

14Rule 1.7(b) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party.

15Tribunal jurisprudence holds that the proper analysis for evaluating a request to add a respondent party is the three-part test articulated in the decision of Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at paragraph 12:

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?

16Having carefully considered the parties’ pleadings and their written and oral submissions, I conclude that it is appropriate to add Barbara Schacher as an individual respondent to the Application. I find that there are compelling reasons to include Ms. Schacher as a respondent party because her workplace interactions with the applicant are at the crux of this proceeding and constitute the applicant’s central concerns. Further, the nature of the alleged post-termination conduct, namely inappropriate disclosure and comments, are such that a remedy may potentially be awarded against her.

17With respect to the first factor of the test, there are clearly facts alleged which, if assumed (without deciding) to be true, could lead to a finding that Barbara Schacher infringed the applicant’s rights under the Code. At this stage, I do not need to decide the factual and legal issues of whether the alleged disclosure constitutes a breach of privacy. It is suffice that the applicant’s alleges that she experienced discrimination and harassment flowing from conduct and comments regarding personal information about her disability and family status. Similarly, I do not need to decide the factual and legal issues of whether the post-termination allegations come within the meaning of “with respect to employment”. However, I note that a diverse array of employment-type situations have been held to be within the ambit of “with respect to employment”: see Loomba v. Home Depot Canada, 2010 HRTO 1434 and the cited cases therein.

18For the purposes of considering the request to add the proposed respondent, the Tribunal only needs to determine, if accepting the alleged facts as true, whether there are allegations against the individual respondent which could support a finding that she has violated the Code.

19The Application repeatedly referenced Barbara Schacher by name as the perpetrator of several incidents of alleged discriminatory treatment during the course of the employment, as well as post-termination gossip targeting the applicant. The alleged discrimination and harassment ascribed to Ms. Schacher constitute a major and significant component of the applicant’s concerns and, thereby, present a persuasive reason to include Ms. Schacher as an individual respondent.

20With respect to the second factor, although the applicant seeks compensation from the corporate respondent, the applicant also seeks as a remedy that all management and supervisory employees receive human rights training.

21In considering whether it would be fair, in all the circumstances, to add the proposed respondent, I note that the applicant’s Reply, which first raised the request to add parties, was within one year of the last alleged discriminatory event. Counsel for the organization respondent and Ms. Schacher was notified at this time of the applicant’s intention to add Ms. Schacher as a respondent. Further, Ms. Schacher has not made any submissions indicating that her ability to participate in the process was prejudiced in any way or to any significant degree because of the omission to identify her as a respondent when the Application was commenced.

22In conclusion, I find that this is an appropriate case to exercise my discretion to add Barbara Schacher as an individual respondent to the Application. The Application contains numerous claims about Ms. Schacher’s alleged discriminatory behaviour which, if proved, could result in a finding of violations of the Code. The proposed respondent’s alleged discriminatory conduct and comments are chief complaints in the Application and the ability of the applicant to pursue a remedy for these alleged contraventions is also a compelling ground to add Ms. Schacher. I conclude that it would not be unfair or unjust in all of the circumstances to add Barbara Schacher at this stage of the Tribunal’s proceedings.

23The applicant’s request to add Barbara Schacher as an individual respondent is granted. Accordingly, I order that Barbara Schacher be added as a respondent to this Application and the style of cause be amended to include her name. Within 21 days of the date of this Interim Decision, Ms. Schacher is directed to file a Form 2 Response. The applicant may file an amended Reply within 7 days from receipt of the Response.

24I am not seized.