HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Budd

Applicant

-and-

Howell Stamping Inc. and Aldolfo Reyes

Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: December 19, 2014

Citation: 2014 HRTO 1802

Indexed as: Budd v. Howell Stamping Inc.

WRITTEN SUBMISSIONS

Michelle Budd, Applicant

Mindy Noble, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin and association with a person identified by a prohibited ground of discrimination. The organizational respondent has filed a Response to the Application. The applicant filed a Request for an Order During Proceedings that the applicant filed on October 17, 2004 seeking to add Aldolfo Reyes to the Application as an individual respondent (the “Request”). Neither the organizational respondent nor the proposed individual respondent filed a Response to the Request for Order.

2In a Case Assessment Direction dated November 4, 2014, the Tribunal directed the organizational respondent to disclose the last know contact information of the proposed respondent to the applicant. On November 6, 2014, counsel for the applicant confirmed that they delivered the Request and the Application to the respondent at the address provided by the organizational respondent.

3The Tribunal held in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(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?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

4In the present case, the Application includes allegations that the proposed respondent, a former employee of the organizational respondent, harassed the applicant because of her relationships with racialized people when she worked for the organizational respondent. The alleged facts, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code. The organizational respondent submits that they are not vicariously liable for any harassment on the part of the proposed respondent, pursuant to section 46.3 of the Code. The individual conduct of the proposed respondent is a central issue in the Application and there is no apparent prejudice to any party in adding the proposed respondent. In the circumstances, it appears that it would be appropriate to add the proposed individual respondent as a party to the proceedings. The applicant’s Request for Order is granted and the style of cause is amended accordingly.

5The individual respondent shall be provided with a copy of the Application, the respondent’s Responses and the applicant’s Reply, along with a copy of this Interim Decision, and is directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of the Application is sent.

6I am not seized.