McMillan v. Winners Merchants International LP, 2013 HRTO 505

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kalisha McMillan

Applicant

-and-

Winners Merchants International LP and Zeyna Erdogan

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: March 26, 2013 Citation: 2013 HRTO 505 Indexed as: McMillan v. Winners Merchants International LP

APPEARANCES

Kalisha McMillan, Applicant No one appearing

Winners Merchants International LP, Wendy Murcia, Marie-Jo Lemaire, Pierre Grenier, Natalina Ciarlo, Zeyna Erdogan and Abe Navarro, Respondents Allison Taylor, Counsel

Norman J. Groot, Respondent No one appearing

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, colour, ancestry, place of origin, ethnic origin, disability and family status. This Interim Decision addresses a Request for an Order During Proceedings (the "Request") filed by the respondents Winners Merchants International LP, Wendy Murcia, Marie-Jo Lemaire, Pierre Grenier, Natalina Ciarlo, Zenya Erdogan and Abe Navarro (the "requesting respondents") on February 28, 2013.

Background

2The applicant, who describes herself as a black woman from Grenada, was an employee of the organizational respondent, Winners Merchants International LP ("Winners"), from November 2007 to February 8, 2012. The applicant alleges that she requested accommodation regarding her schedule at various times to attend her brother's funeral in Grenada and to care for her mother, who suffered a stroke in May, 2011. In particular, the applicant alleges that management required her to find her own replacement if she needed to change her shift, which was not required of white employees; was subjected to racist slurs from management; and was reprimanded and chastised whenever her family responsibilities conflicted with her shifts. The applicant indicates that the individual respondent, Zeyna Erdogan, repeatedly advised the applicant that she should return to Grenada where she might get help for her mother. The Application also alleges that Ms. Erdogan was a central figure in denying accommodation to the applicant. The applicant alleges that she was called to a meeting on or about January 20, 2012 where she was coerced into signing a Restitution Agreement in which she admitted an act of fraud. Winners terminated the applicant's employment on February 8, 2012 and asserted just cause for dismissal. The applicant later received a demand letter from the individual respondent Norman Groot, counsel for Winners, seeking payment of $1,000.00 as compensation for her alleged misconduct. The applicant alleges the respondents' conduct violates sections 5(1), 5(2) and 9 of the Code.

3The respondents deny the allegations. In their Response, the requesting respondents state that the applicant received the accommodations she requested and was not subjected to any racist slurs or harassment of any kind. The requesting respondents state that Winners dismissed the applicant for cause after it determined that the applicant perpetrated a fraud by altering an employment confirmation letter to a mortgage lender to significantly overstate her income. Mr. Groot states in his Response that he is a lawyer with Investigation Counsel Professional Corporation and, in that capacity, sent the applicant a letter for civil recovery, which is a normal practice when Winner dismisses an employee for fraud.

The Request

4In the Request, the requesting respondents seek the removal of the individual respondents. The applicant and Mr. Groot did not file a Response to a Request for Order and the time for doing so has passed. The requesting respondents rely on Persaud v. Toronto District School Board, 2008 HRTO 31, in which the Tribunal stated as follows regarding removing individual respondents, at paragraph 5:

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is 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 sought to be removed?

3. Is there is 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?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

5The requesting respondents submitted that Winners is alleged to be liable for the same conduct as the individual respondents and accepts being deemed liable for the conduct of its employees. The requesting respondents submitted that there is no issue regarding Winners' responsibly and ability to satisfy any remedies. The requesting respondents submitted only Winners can provide the requested remedies and the applicant has named no remedy specific to the personal respondents. The requesting respondents also submitted that there is no compelling reason to continue the proceedings against the individual respondents because they were each acting in his or her capacity as managers, human resources personnel or legal counsel and the application discloses no allegations that they acted outside of their roles.

Analysis and Decision

6The Application, on its face, does not present any facts that would indicate that the individual respondents were acting outside of the scope of their employment, with the exception of Zenya Erdogan. In fact, the Application does not indicate that Natalina Ciarlo, Wendy Murcia, Marie-Jo Lemaire and Pierre Grenier had any part in the incidents alleged in the Application. In my view there is no compelling juridical reason to continue the Application against these individual respondents. The actions attributed to Ms. Erdogan, however, arguably amount to violations of sections 5(1) and 5(2) and may not come within the scope of her employment. Winners would in any event not be responsible for Ms. Erdogan's actions to the extent they violate section 5(2), pursuant to section 46.3(1) of the Code. In these circumstances, removing Ms. Erdogan from the proceedings would, in my view, be premature at this point.

Order

7Wendy Murcia, Marie-Jo Lemaire, Pierre Grenier, Natalina Ciarlo, and Abe Navarro are removed as individual respondents and the style of cause is amended accordingly.