Jaques v. 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar, 2014 HRTO 1237

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Joslyn Jaques Applicant

-and-

1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar and Haley Rooney Respondents

INTERIM DECISION

Adjudicator: Daniel Randazzo Date: August 21, 2014 Citation: 2014 HRTO 1237 Indexed as: Jaques v. 1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar

APPEARANCES

Michelle Joslyn Jaques, Applicant Chantal Tie, Counsel

1633092 Ontario Ltd. o/a TOSH Steakhouse and Bar, Respondent Haley Rooney, Representative

1This Interim Decision addresses a Request for Order During Proceedings (“RFOP”) filed by the applicant on July 31, 2014 seeking an order to add a Ms. Haley Rooney as a personal respondent.

2By way of Interim Decision dated August 8, 2014 I directed that the applicant’s request would be dealt with at the hearing of this matter on August 12, 2014. On August 11, 2014 the respondent, Tosh Steakhouse, filed a Form 11, Response to a Request for Order During Proceedings opposing the applicant’s request to add a personal respondent and seeking an adjournment of the August 12, 2014 hearing.

3The hearing was held on August 12, 2014 at which time all but one preliminary matters were resolved or otherwise dealt with. The applicant’s request to add a personal respondent was the only matter that remained to be determined. I invited both parties to make oral submissions in support of their positions.

4In support of her request the applicant directed my attention to her Application wherein she alleged that it was Ms. Rooney who canceled the accommodation put in place by the corporate respondent’s manager; it was Ms. Rooney who did not accommodate the applicant’s pregnancy, and it was Ms. Rooney who said that if the applicant could not manage the stairs there would be no shifts for her. Furthermore, the applicant submits that Ms. Rooney was in a position of authority and was acting as agent of the corporate respondent and that the alleged actions of Ms. Rooney amount to discrimination under the Code. Finally, the applicant points to the fact that the corporate respondent’s business, a restaurant, was destroyed in a fire and the corporate respondent’s next venture, a restaurant “Skirt Steak”, has failed thereby calling into question the corporate respondent’s ability to pay should a violation of the Code be found.

5The respondent’s argument opposing the applicant’s request can be summarized as follows: the request could have been filed sooner; the allegations against the corporate respondent and personal respondent are unfounded; the allegation that the corporate respondent cannot pay if a finding is made against them is false; references to the establishment Skirt Steak are irrelevant; the applicant’s request to add a personal respondent is a strategic or tactical decision intended to overwhelm or distract the respondent from preparing for the hearing; the respondent should be allowed an adjournment to allow her to retain counsel, and; the respondent should be granted an adjournment if the request is granted.

6Having reviewed the material filed by the parties and after considering their respective submissions, I find that it is appropriate to add Ms. Haley Rooney as a personal respondent.

REASONS

7The 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 personal 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?

When 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.

8Having considered the factors set out in Smyth and Persaud, I find it appropriate to grant the applicant’s request to add Ms. Rooney as a personal respondent. All of the applicant’s allegations relate to alleged conduct by Ms. Rooney. It is Ms. Rooney who the applicant claims to have canceled the accommodations put into place by the corporate respondent’s manager, refused to then accommodate the applicant; and advised the applicant that if she could not manage the stairs that there would be no shifts for the applicant. The conduct of Ms. Rooney is a central issue in this case and this conduct, if true, could form the basis of a finding that the Code has been violated. This weighs in favour of adding her as a personal respondent.

9In addition, one of the relevant factors set out by the Tribunal in Persaud was whether there is any issue (i.e. concern) as to the ability of the corporate respondent to remedy the alleged Code infringement. I find that there is such a concern in this case in light of the fact that the corporate respondent’s business suffered a significant loss following a fire in April 2014. In making this finding, I have not considered whether the business venture, Skirt Steak, is a going concern. For the purposes of this RFOP I accept that Skirt Steak is a separate entity from the corporate respondent. I accept that where a business is destroyed by fire, that fact is reason enough to raise concerns with respect to the corporate respondent’s ability to pay.

10With respect to the respondent’s arguments opposing the request to add a personal respondent, I note that the fire took place in April 2014 but it was not until July 2014 that the applicant learned of what they believed was the failing Skirt Steak restaurant. The applicant states that it was then that they determined that there were issues with respect to the corporate respondent’s ability to pay.

11In deciding to add a party to the proceedings, I have not considered whether the allegations against the corporate and personal respondent are true. The likeliness of success is not a matter considered in deciding to add a personal respondent to the proceedings.

12The fact that the corporate respondent’s business was entirely destroyed by fire, does, without compelling evidence to the contrary, raise serious concerns with respect to the corporate respondent’s ability to pay in the event that a violation of the Code is found.

13There is no evidence to substantiate the respondent’s claim that the applicant’s request to add a party was a strategic decision intended to overwhelm or distract the respondent from preparing for the hearing of the merits of the Application. I point out that given the number of preliminary and procedural matters dealt with at the August 12th hearing, the parties were not required to call any evidence with respect to the merits of the Application.

14The respondent contended that it should have been allowed an adjournment to allow it to retain counsel to assist with their response to the applicant’s request. I note that the respondent has been able to respond to the Application, prepare its documents for the hearing, file its own RFOP and file its Form 11 Response to a Request for Order During Proceedings without retaining counsel.

15Finally, I note that the respondent requested that if I was to grant the applicant’s request to add a personal respondent then the respondent would require an adjournment. Although I did not grant the respondent’s request for an adjournment, I note that, given the time needed to deal with the preliminary issues, the respondent was not required to call evidence with respect to the merits of the Application. In effect, the respondent has an adjournment as this matter has yet to be scheduled for continuation. The respondent can take this time to prepare for the hearing of the merits and to retain counsel, if they choose to do so.

16In light of the above, I find it appropriate to grant the applicant’s request to add Ms. Rooney as a personal respondent.

ORDER

17Ms. Haley Rooney is added as personal respondent. The style of cause is amended to give effect to this order.

18The parties are advised that the Registrar will contact the parties to schedule two (2) days for the hearing of this matter. Finally, the Tribunal reminds the parties of their obligation to become prepared to commence the hearing of this matter on the dates that it is rescheduled.