Theriault v. Lafarge Canada Inc., 2014 HRTO 1600

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amanda Theriault Applicant

-and-

Lafarge Canada Inc., Michael Sullivan, Les Coulas and E&E Seegmiller Limited Respondents

INTERIM DECISION

Adjudicator: Alison Renton Date: October 30, 2014 Citation: 2014 HRTO 1600 Indexed as: Theriault v. Lafarge Canada Inc.

WRITTEN SUBMISSIONS

Amanda Theriault, Applicant Fred Bickford and Sarah Manilla, Counsel

LaFarge Canada Inc., Respondent Tom Moutsatsos, Counsel

Michael Sullivan, Respondent Rachel Turnpenney, Counsel

E&E Seegmiller Limited and Les Coulas, Respondents Jordan Smith, Counsel

1This Application was filed on July 2, 2014 and alleges discrimination with respect to employment because of sex, including sexual harassment, sexual solicitation, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant initially named LaFarge Canada Inc., Mike Sullivan, and Les Coulas as respondents. Shortly after filing the Application, the applicant’s legal representation changed.

2The personal respondent Mike Sullivan has filed a Response. He clarified that his first name is Michael and accordingly his first name will be changed on the style of cause as such. The other respondents have not filed a Response and they have been directed by the Tribunal not to file one pending the determination of the issues set out in this Interim Decision.

3The applicant has filed a Request for Order During Proceedings (“RFOP”) seeking to add two respondents, Seegmiller Group and Les Coulas, and seeking to amend her Application. She provided the specific wording to the paragraphs she was seeking to amend.

4The respondents LaFarge and Sullivan have filed separate Responses to the RFOP in which they, separately, do not object to the amendments that the applicant is seeking. Both request additional time to amend their respective Responses.

5The proposed respondent Seegmiller, and Coulas filed a joint Response to the RFOP. They object to being named as respondents and deny the allegations against them.

analysis

Adding Respondents

6The 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?

7When 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.

8On her initial Application, the applicant identified Mike Sullivan and Les Coulas as personal respondents. Accordingly, the Tribunal does not need to add Mr. Coulas as a personal respondent since he is already one.

9I find it appropriate to add E&E Seegmiller Limited as a corporate respondent given that it is Mr. Coulas’s employer. The applicant makes a number of serious allegations against Mr. Coulas, whom she identified as a contractor working for LaFarge Canada Inc. According to the submissions filed by Mr. Smith, as counsel for E&E Seegmiller and Mr. Coulas, Mr. Coulas is not employed by LaFarge Canada Inc, but rather E&E Seegmiller Group. If the Application is upheld, it is possible that remedies could be awarded against Mr. Coulas, and also against E&AE Seegmiller as Mr. Coulas’s employer. Accordingly, it is appropriate to add E&E Seegmiller Limited as a respondent.

Amending Pleadings

10Rule 1.7(c) of the Tribunal’s Rules of Procedure permits the Tribunal to allow any filing to be amended. The Tribunal has considered, amongst other things, the timing of the request, fairness, the conduct of the party seeking the amendment, whether the amendment would occasion actual prejudice to the other party and the impact of the proposed amendment on the course of the hearing and any other parties. See Ibrahim v. Hilton Toronto, 2012 HRTO 740 at para. 16, and Wozenilek v. 7-Eleven, 2010 HRTO 407 at para. 26. The Tribunal often permits an applicant to amend the remedies that he or she is seeking. See Robert v. 289900 Ontario, 2009 HRTO 653 at para. 13. Of course, amended remedies are only relevant in the event that the Application is upheld.

11In this case, the applicant’s request to amend was filed shortly after her Application was filed. I do not see any prejudice to any respondent for the Application to be amended as indicated in the RFOP. Accordingly, the applicant’s request to amend her Application in the form indicated in her RFOP is granted.

order

12Accordingly, the Tribunal orders the following:

a. E&E Seegmiller Limited is added as a respondent to this Application;

b. The applicant is permitted to amend her Application in the format identified in her RFOP. She is also directed to file an amended Application, with the amendments underlined, with the Tribunal, copying all the respondents, within 7 days from the date of this Interim Decision;

c. The respondents LaFarge Canada Inc., E&E Seegmiller Limited, and Les Coulas are to file their Responses with the Tribunal within 35 days of the date of this Interim Decision; and,

d. The respondent Michael Smith can file an amended Response, if he chooses, within 35 days of the date of this Interim Decision.

13I am not seized with this matter.