HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Layla Farah
Applicant
-and-
Hudson’s Bay Company
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Farah v. Hudson’s Bay Company
WRITTEN SUBMISSIONS
Layla Farah, Applicant
Self-represented
Hudson’s Bay Company, Rossana Farrace, Respondents
Sara Parchello, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of race, colour, ancestry and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2Together with her Application, the applicant has filed a Request for Order During Proceedings (RFOP) seeking to add as a respondent, an employee of the respondent Hudson’s Bay Company (“HBC”). On November 15, 2013, she also filed an RFOP seeking an order for production of a document from HBC. In its Response and in an RFOP filed November 19, 2014, the respondents seek an order removing Rossana Farrace as a party to this Application. Also in their Response and in their November 19, 2013 RFOP, they request that the Tribunal dismiss this Application on a preliminary basis.
BACKGROUND
3The applicant alleges that she was made to feel uncomfortable during the course of an interview by Rossana Farrace, a Human Resources manager at HBC and another HBC employee she identifies by first name only and indicates is a “loss prevention” manager, and subsequently when she was suspended and ultimately terminated. She identifies herself as African, Somali and black, but though she has checked off boxes indicating that she believes she was discriminated against on the basis of race, colour and ancestry, she does not make any specific allegations of discrimination on those bases in the narrative section of her Application. With respect to creed, she identifies herself as Muslim and indicates that she had “no issues” at work, but that she began wearing a hijab approximately two months before the above-noted interview and subsequent suspension and termination, and that she believes that she was being discriminated against.
4The applicant also filed a Request for an Order During Proceedings (RFOP) on September 19, 2013, seeking to add the “loss prevention” manager as an individual respondent and seeking her last name. Additionally, on November 15, 2013, she filed a request for production of a letter of apology she states she was required to write prior to her termination.
5The respondents filed a Response in which they deny any discrimination. In their Response and in a Request for an Order During Proceedings (RFOP), they seek to have Rossana Farrace removed as a respondent and they seek the dismissal of this Application on a preliminary basis.
Requests Regarding Individual Respondents
6Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
7The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
8The respondents submit that Rossana Farrace is an employee of HBC and that it accepts that it would be liable for her conduct, as her decisions and actions were carried out in the course of her employment duties. Additionally, they submit that HBC may respond to or remedy any alleged Code infringements. They submit that there is no compelling reason to proceed against Rossana Farrace and that removing her as a respondent would not be prejudicial to the applicant. It also notes that she would be a witness at any hearing into the merits of this Application.
9The applicant has not filed a Response to the respondents’ RFOP.
10I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve Rossana Farrace as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
11The respondents’ request to remove Rossana Farrace as individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
12The applicant seeks to add the HBC loss prevention manager who was at the above-noted interview, as an individual respondent. The Tribunal held in Smyth v. Toronto Police Services, 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?
13The respondents have not responded to the applicant’s RFOP.
14The Application does not contain allegations that indicate that the individual conduct of the loss prevention manager is a central issue in this Application. Further, as that individual also is an employee of HBC, HBC has been named as a respondent and would be able to respond to or remedy any infringement of the Code found by the Tribunal, there does not appear to be a compelling reason to include her as a respondent. I am aware of no impediment to her appearing as a witness at any hearing of the merits of this Application. I am not persuaded that fairness requires that the proposed respondent be added as a party to this Application, and the applicant’s request is dismissed.
Request for Documentation
15In her second RFOP, the applicant seeks production of a letter of apology she says she was required to write prior to the termination of her employment.
16The respondents have not responded to the applicant’s RFOP.
17The Tribunal’s Rules of Procedure provide timelines for disclosure of documentation prior to a hearing. The timelines do not commence until the Tribunal issues a Confirmation of Hearing to the parties. Accordingly, requests for production are normally not addressed until a matter has been scheduled for a hearing on the merits and the parties have complied with their disclosure obligations under the Tribunal’s Rules of Procedure. See: Krantz v. Ottawa Police Services, 2009 HRTO 787. The applicant’s request for production of documentation is dismissed as premature at this stage of the proceedings.
DIRECTION
18The Tribunal directs as follows:
The respondents’ request to remove Rossana Farrace as an individual respondent is granted and the title of cause is amended accordingly;
The applicant’s request to add the HBC loss prevention manager as an individual respondent is dismissed;
The applicant’s request for documentation is dismissed at this point in the proceedings, as it is premature;
19I am not seized.
Dated at Toronto, this 28th day of February, 2014.
“Signed By”
Maureen Doyle
Vice-chair