Costigane v. Nyood Restaurant, 2013 HRTO 648

Human Rights Tribunal of Ontario

B E T W E E N:

Julie Costigane Applicant

-and-

Nyood Restaurant, Moise Bensadouin and Arturo Gayle Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: April 18, 2013 Citation: 2013 HRTO 648 Indexed as: Costigane v. Nyood Restaurant

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, ethnic origin and sex. The applicant alleges that she was subjected to racial and sexual harassment by the organizational respondent in respect of issues arising out of her employment.

2On February 4, 2013, the applicant filed a Request for an Order During Proceedings. The respondents did not respond to the Request and the time for doing so has passed. The applicant seeks an order amending the Application to include Moise Bensadouin, the owner of the organizational respondent, as a respondent to the Application. The applicant submitted that she wishes to ensure that all parties responsible are involved in the Application.

3The 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?

4The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

5In the present case, the Application includes allegations that the proposed respondent subjected her to sexual harassment. The alleged facts, if proven, could support a finding that the proposed respondent violated the applicant's rights under the Code. The individual conduct of the proposed respondent is a central issue in the Application and there is no apparent prejudice to any party in adding the proposed respondent. The proposed respondent is the owner of the organizational respondent and is presumably aware of the Application. In the circumstances, it appears that it would be appropriate to add the proposed individual respondent as a party to the proceedings. The applicant's Request for Order is granted and the style of cause is amended accordingly.

6The individual respondent shall be provided with a copy of the Application, the respondents' Responses, along with a copy of this Interim Decision, and is directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of the Application is sent. Alternatively, the organizational respondent may confirm that Mr. Bensadouin is included by its Response.

7I am not seized.