Mills v. Adecco Employment Services Limited, 2014 HRTO 1166

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Anthony William Mills

Applicant

-and-

Adecco Employment Services Limited and London Life Insurance Company

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 7, 2014

Citation: 2014 HRTO 1166

Indexed as: Mills v. Adecco Employment Services Limited

WRITTEN SUBMISSIONS

John Anthony William Mills, Applicant

Christine Lundy, Representative

London Life Insurance Company, Respondent

Sonya Clark, Counsel

Introduction

1This Interim Decision addresses the applicant’s requests to add London Life Insurance Company (“London Life”) as a respondent to the Application and to amend the remedial relief sought in the Application.

2By Application filed on April 29, 2014, the applicant alleged that Adecco Employment Services Limited (“Adecco”) discriminated against him because of disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that Adecco terminated his employment contract at the head office of London Life because of his requests for accommodation of his family responsibilities and of a medical condition brought about due to alleged harassment by a co-worker at London Life.

3By Request for Order During Proceedings (“RFOP”) filed June 5, 2014, the applicant requested that the Tribunal add London Life as a respondent. The applicant submitted that no prejudice would be caused to London Life due to the early stage of proceedings. He also alleged that both Adecco and London Life stood in the position of employer. According to the applicant, although Adecco paid his wages, it was London Life that set the day-to-day conditions of his employment. London Life opposed the applicant’s request, taking the position that it is not his employer and the applicant has not alleged any facts that would indicate an infringement of the Code by London Life.

4The applicant also requested an amendment to the remedies sought in the Application. Specifically, he requested that the monetary remedy sought be increased and he sought to add a request policy development and training.

Request to add London Life as respondent

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?

6Having considered the factors set out in Smyth, I find it appropriate to grant the applicant’s request to add London Life as a respondent. While Adecco is the applicant’s employer, the applicant has alleged that London Life had control over day-to-day employment decisions. In particular, the applicant submitted his request for accommodation to both Adecoo and London Life. The applicant alleged that London Life infringed the Code by failing to provide accommodations recommended by the his doctor for the medical conditions caused by the alleged harassment he experienced in his work at London Life. The applicant also alleged that London Life either initiated the decision to terminate his contract or reached the decision in combination with Adecco. I note that s. 5 of the Code, provides protections against discrimination “with respect to employment”. It is not restricted to protecting against discrimination by employers in the sense of the entity that pays an employee’s wages. In my view, the applicant has made allegations that could support a finding that London Life has violated the Code if he meets his burden of proving discrimination on a balance of probabilities. I am not persuaded that it is unfair to add London Life in all the circumstances, especially the very early stage of proceedings.

Request to Amend Remedies Sought

7Neither respondent opposed the applicant’s request to amend the remedies sought in his Application.

8I grant the applicant’s request to amend the remedial relief requested in the Application. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

9This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondents may wish to take regarding this issue.

Order

10The Tribunal orders as follows:

a. The applicant’s request to add London Life Insurance Company as a respondent is granted. The style of cause shall be amended accordingly.

b. London Life must file a Response to the Application within 35 days of the date of this Interim Decision.

c. The applicant’s request to amend the remedies sought in the Application is granted. The remedies sought in the Application are amended to reflect the remedies requested at paras. 17-22 of the applicant’s June 5, 2014 RFOP.

11I am not seized.