Merrill v. WC Edwards Lumber, a division of Common Wealth Plywood Company Ltd., 2014 HRTO 1131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Merrill

Applicant

-and-

WC Edwards Lumber, a division of Common Wealth Plywood Company Ltd. and Claude Vivier

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: July 29, 2014

Citation: 2014 HRTO 1131

Indexed as: Merrill v. WC Edwards Lumber, a division of Common Wealth Plywood Company Ltd.

WRITTEN SUBMISSIONS

Janice Merrill, Applicant

Chantal Tie, Counsel

1In her Application, the applicant alleged that the corporate respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Among other things, she alleged that her manager, Claude Vivier, made sexual solicitations and or advances toward her.

2This Interim Decision addresses the applicant’s requests to add Mr. Vivier as a personal respondent and to amend the Application to include a claim for interest.

REQUEST TO ADD PERSONAL RESPONDENT

3By Request for Order During Proceedings (“RFOP”), the applicant sought to add Mr. Vivier as a personal respondent. In her RFOP, she stated that she was unrepresented at the time that she filed the Application and drafted it without the benefit of legal advice or input. The applicant submitted that the allegations against Mr. Vivier could support a violation of the Code as she has alleged that he sexually harassed her and retaliated against her.

4The corporate respondent consented to the applicant’s request to add Mr. Vivier as a personal respondent. Although the applicant’s RFOP was delivered to Mr. Vivier, he did not file any submissions in response to the RFOP.

5The 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?

6When 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.

7Having considered the factors set out in Smyth and Persaud, I find it appropriate to grant the applicant’s request to add Mr. Vivier as a personal respondent. Many of the applicant’s allegations relate to alleged comments and conduct by Mr. Vivier. Due to the allegations made in the Application, it may be appropriate for the Tribunal to award a remedy against the personal respondent if the applicant meets her burden of proving a violation of the Code in this case.

APPLICANT’S REQUEST TO AMEND APPLICATION

8The applicant requested that the Application be amended to add a claim for pre- and post-judgment interest. The corporate respondent consented to this amendment. In all the circumstances, I find it appropriate to grant this request.

Direction

9The Tribunal orders as follows:

a. The applicant’s request to add Claude Vivier as a personal respondent is granted. The style of cause is amended accordingly.

b. The applicant has confirmed that she has delivered a copy of the Application to Mr. Vivier. The Registrar shall deliver to Mr. Vivier, along with this Interim Decision, a copy of the Response, the Reply and the Form 11 filed by the corporate respondent.

c. Mr. Vivier is directed to file a Response to the Application no later than 28 days from the date of this Interim Decision.

d. Following the filing of Mr. Vivier’s Response, or of the expiry of the time for doing so, the Tribunal will provide further directions for next steps on this file.

e. The applicant’s request to amend the Application to include a claim for interest is granted. The Application is amended to include a claim for pre- and post-judgment interest.