Mohammed Al Alwan v. Equinox Yorkville Co. and Paul Parik, 2014 HRTO 1286

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammed Al Alwan Applicant

-and-

Equinox Yorkville Co. and Paul Parik Respondents

INTERIM DECISION

Adjudicator: Paul Aterman Date: September 2, 2014 Citation: 2014 HRTO 1286 Indexed as: Al Alwan v. Equinox Yorkville Co.

WRITTEN SUBMISSIONS

Mohammed Al Alwan, Applicant Melissa Mark, Counsel

Equinox Yorkville Co., Respondent Barbra Miller, Counsel

Paul Parik, Respondent Self-represented

introduction

1This Interim Decision explains why the Tribunal is allowing the present Application, which alleges discrimination with respect to employment because of race, place of origin, ethnic origin, citizenship and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), to be amended. It also explains why it is granting the applicant’s request to add the personal respondent to this Application.

2The applicant used to work for the corporate respondent as an employee at a juice bar. He alleges that he was treated differentially and discriminated against in terms of his salary, that he was subject to racist comments by his manager, that this was tolerated by the corporate respondent and that discrimination was also a factor in the corporate respondent’s decision to terminate his employment. These allegations are all denied by the corporate respondent. The proposed personal respondent is the applicant’s former manager.

request to amend application

3The applicant originally filed his Application without the benefit of legal advice. The original Application makes specific reference to a number of discriminatory comments allegedly made to the applicant by the proposed personal respondent. He now requests to amend the Application in order to provide details of further examples of the same alleged conduct by the proposed personal respondent. He argues that there is no prejudice to the corporate respondent and proposed personal respondent in that the amendments put them both on notice of the specific allegations of discriminatory conduct at an early stage in the proceedings.

4The corporate respondent does not oppose this request. The proposed personal respondent does. He argues that allegations that he acted in a discriminatory way are false and the communications are taken out of context because they formed part of a banter between him and the applicant which the applicant willingly engaged in.

5I am of the view that the applicant should be allowed to amend his Application for the following reasons. First, the applicant is not adding new allegations. Rather he is expanding on an existing allegation by providing more particulars of the same type of alleged conduct. Second, the request to amend comes relatively early on in the process in that a hearing date has not yet been set and thus there is little prejudice to the corporate respondent and proposed personal respondent. Third, the request to amend does not appear to be caused by any delay or negligence on the applicant’s part, and instead is made after he has had the benefit of advice from counsel. Having regard to these circumstances, the request to amend is granted.

6The proposed personal respondent should understand that just because the Tribunal is granting the request to amend the Application, it does not mean that it is accepting that the allegations being made by the applicant are true. At this stage these are simply allegations. The hearing process will attempt to determine what is or is not true.

request to add respondent

7The applicant argues that his former manager should be added to the Application as a respondent. Some of the allegations made by the applicant could be interpreted as harassment of the applicant by his former manager.

8Under the Code a corporate respondent is deemed liable for the discriminatory actions of its employees, but this general rule of deemed liability does not apply to harassment in employment (see: s.46.3(1) and s.5(2) of the Code).

9If, after hearing this Application, the Tribunal finds that the applicant was harassed by his former manager, the corporate respondent in this case would not be liable unless (a) it knew about the harassment and did nothing about it or (b) the manager is considered by the Tribunal to have been a “directing mind” of the corporate respondent (see the decision of the Divisional Court in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.)). Thus there is a real possibility that if the former manager were not named as a respondent, then the applicant would have no remedy for the discriminatory conduct.

10The corporate respondent consents to the applicant’s request.

11The proposed personal respondent, quite understandably, opposes it. He says he should not be added as a respondent because he no longer works for the corporate respondent and was never made aware of any of these allegations until being served with the present request. Furthermore, he maintains that his managerial responsibility was limited to scheduling shifts and did not supervise the applicant directly. Finally, he adds that the applicant’s allegations are false and that he can prove this through the evidence of a co-worker.

12The fact that the proposed personal respondent no longer works for the corporate respondent is not a reason that would justify refusing to add him as a respondent. His current employment status is irrelevant to the question of who should or should not be held to account for past actions if, in fact, those actions were discriminatory.

13As to the extent of his managerial responsibility (which in turn goes to the question of whether or not he was a “directing mind” of the corporate respondent), that is a factual question which will ultimately be decided through the hearing process. However, at this stage I am satisfied that it is appropriate that he be added as a respondent in order to avoid the risk that – if the applicant is successful in proving discrimination – the applicant would be left without a remedy in relation to the alleged harassment. The request to add Mr. Parik as a respondent is granted.

14Again, it is worth repeating for the benefit of the personal respondent (who does not have counsel) that adding him as a respondent does not mean that the Tribunal accepts that the allegations being made against him are valid. That is an issue which will be determined through the evidence, including the evidence of the witness referred to by the personal respondent if that witness is called by any of the parties to give evidence.

order

15The request to amend the Application is granted. If the corporate respondent wishes to amend its Response in light of the applicant’s amendments, it shall provide the Tribunal with a revised Response within 35 days of the date of this Interim Decision.

16The request to add Mr. Parik as a personal respondent is granted. The Registrar is requested to provide the personal respondent with a copy of the Application, along with the amendments. The personal respondent shall provide the Tribunal with his Response not later than 35 days after the Tribunal sends him a copy of the Application and amendments.

17If, as a result of receiving an amended Response from the corporate respondent or the Response from the personal respondent, the applicant wishes to amend his Reply, he shall do so in accordance with the Rules.

18The Registrar is requested to schedule the hearing of this Application.