Freeman v. VRSP Inc., 2014 HRTO 1015

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shannon Freeman

Applicant

-and-

Crabby Joe’s Ingersoll-VRSP Inc., Rakesh Sharma, Prateek Sharma and Siva Markandu

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: July 11, 2014 Citation: 2014 HRTO 1015 Indexed as: Freeman v. VRSP Inc.

WRITTEN SUBMISSIONS

Shannon Freeman, Applicant

Self-represented

VRSP Inc., Rakesh Sharma, Prateek Sharma and Siva Markandu, Respondents

Elizabeth Traynor, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant requests that her Application be amended to include three personal respondents, Rakesh Sharma, the president and officer of the respondent corporation; Prateek Sharma, an employee and assistant manager; and Siva Markandu, general manager of the corporation. The respondents filed a Response asking that the personal respondents not be added as parties.

3The hearing is scheduled for November 17 and 18, 2014.

Request to add personal respondents

4The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

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?

5When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 (“Persaud”). These factors focus mainly on whether the corporate respondent is responsible for the conduct of the proposed personal respondent, and whether there is a compelling legal reason for an individual to be named as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his or her conduct is a central issue in the case and extends beyond implementing organizational policies or practices. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 and Persaud at para. 5.

6Having considered the factors set out in Smyth and Persaud, I find it appropriate to grant the applicant’s request to add Siva Markandu and Prateek Sharma as personal respondents. The applicant is self-represented and did not realize she should name the personal respondents until she recently received some legal advice.

7Some of the applicant’s allegations relate to alleged conduct by Mr. Markandu and Mr. Prateek Sharma. In particular, the applicant has alleged that certain comments allegedly made by Mr. Markandu and Mr. Prateek Sharma constitute sexual harassment, including comments allegedly made with respect to her body as her pregnancy progressed. Due to the allegations made in the Application, it may be appropriate for the Tribunal to award a remedy against the personal respondents if the applicant meets her burden of proving her allegations in this case.

8The corporate respondent has not asserted any prejudice that would result from the addition of these two personal respondents. The hearing is more than three months from now.

9With respect to adding Mr. Rakesh Sharma, the applicant asserts that he is trying to sell the business and has allegedly commented that if he is able to do so, the mess with the applicant will all go away. The applicant alleges that Mr. Rakesh Sharma is the directing mind behind the corporation, and the decisions made to reduce her hours and to fail to call her back to work after her pregnancy were made by him. The corporate respondent did not dispute these assertions.

10While the corporate respondent alleges that there is no issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement, it does not make any submissions that respond to the applicant’s allegations of the owner trying to sell the business. As such, I accept the applicant’s allegations that there may be difficulties with respect to the ability of the corporate respondent to remedy any alleged Code infringement, and I find that it is appropriate to add Mr. Rakesh Sharma as a personal respondent.

Order

11For the reasons set out above, the Tribunal orders as follows:

12The applicant’s request to add Rakesh Sharma, Prateek Sharma and Siva Markandu as personal respondents is granted.

13The style of cause is amended accordingly.

Dated at Toronto, this 11^th day of July, 2014.

“signed by”

Dawn J. Kershaw Vice-chair

CORRECTION

The Interim Decision issued on July 11, 2014 incorrectly identified the hearing as taking place on October 22 & 23, 2014 in paragraph three. The error has been corrected.