Nayar v. Mulu, 2014 HRTO 1597

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sundaresh Nayar Applicant

-and-

Asgedom Mulu and Shashi Foods Inc. Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: October 29, 2014 Citation: 2014 HRTO 1597 Indexed as: Nayar v. Mulu

WRITTEN SUBMISSIONS

Sundaresh Nayar, Applicant Jordan Epstein, Counsel

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant alleges the personal respondent who was the plant manager at the applicant's former place of employment, Shashi Foods Inc., prevented him from leaving work to attend Friday prayers. He alleges when he raised a Code issue with Shashi Foods Inc. and the personal respondent because of this, he was terminated as a reprisal for claiming his rights under the Code.

3The applicant filed a September 30, 2014 Form 10 Request for an Order During Proceedings seeking to amend the Application to add Shashi Foods Inc. as a respondent and to increase the monetary compensation claimed.

4Neither the personal respondent nor Shashi Foods Inc. responded to the Request for an Order During Proceedings although it was delivered to both of them.

Add Corporate Respondent

5The analysis applied by the Tribunal when dealing with requests to add respondents is set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12. 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?

6After considering the Smyth factors, I find that it is appropriate to add Shashi Foods Inc. as a respondent to the Application. The applicant has alleged he was terminated by Shashi Foods Inc. as a reprisal for raising Code issues.

7In my view, the applicant has made allegations that could support a finding that Shashi Foods Inc. violated the Code.

8Since the Application has not been scheduled for hearing, I consider it fair in all the circumstances to add Shashi Foods Inc. as a respondent.

Increase Monetary Compensation Claimed

9The request to amend the Application to increase the amount of monetary compensation also is granted because there is no prejudice to the respondents in allowing it.

order

10The Tribunal orders as follows:

a. The applicant's request to add Shashi Foods Inc. as a respondent is granted and the style of cause amended accordingly.

b. The Registrar will deliver the Application, a Notice of Application, the Response filed by the personal respondent and this decision to Shashi Foods Inc.

b. Shashi Foods Inc. is directed to file a Response to the Application with the Tribunal in accordance with the Rules within 35 days of the date of the Notice of Application.

c. The applicant may file a Reply to Shashi Food Inc.'s Response in accordance with the Rules.

d. The applicant's request to amend the Application to increase the amount of monetary compensation claimed is granted.

next steps

11The mediation scheduled for November 25, 2014 is cancelled and will be rescheduled if Shashi Foods Inc. is agreeable to mediation.

12Shashi Foods Inc. shall advise the Tribunal by no later than December 5, 2014 if it is agreeable to mediation.

13If Shashi Foods Inc. is not interested in mediation, then the Registrar will schedule a one day hearing to address the merits of the Application.