HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N: Jessica Kumornik
Applicant
-and-
SIR Corp. and Amanda Leckie
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Kumornik v. SIR Corp.
1This is an Application filed October 11, 2013 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of gender identity in vocational association and reprisal. The Application was filed against the applicant’s former manager at her former place of employment. This Interim Decision addresses a Request for Order During Proceedings to add the applicant’s employer and remove her manager (the “Request”) and a Request for Summary Hearing.
Background
2The Application arises out of the applicant’s employment with Jack Astor’s Bar & Grill. The applicant was employed as a bus person or “busser” from February to September 2013. Among other things, the applicant alleges that male bussers got more hours than female bussers including her and that male bussers were being praised for work that had already been half completed by her. The applicant also alleges that the dress code/uniform policy made her feel that she was selling herself and alleges that a note about hair styles was sexist.
3In the course of her narrative, the applicant references her “manager” to whom she directed concerns about a number of employment related issues including complaints about her hours, her work performance and the dress code.
4A Response has been filed along with a Request for Order and a Request for Summary Hearing. The respondent submits that that although the applicant has filed the Application in the area of vocational association and alleges she has been discriminated against on the basis of gender identity, it understands the applicant’s allegations to actually relate to the ground of sex and to pertain to her employment with SIR Corp., the owner and operator of Jack Astor’s Bar & Grill. Based on this understanding, the manager provides a Response denying the allegations of discrimination and providing a contrary factual response to each of the allegations made.
5The Request for Order is filed with the consent of the individual respondent and SIR Corp. With respect to being named as an individual respondent, the respondent submits that the Application does not subscribe any clear allegations of conduct to her, which could be considered a violation of the Code. As restaurant manager, the manager was responsible for enforcing SIR Corp.’s policies and procedures and for overseeing the management of the restaurant location. The respondent submits that applying the factors in Persuad v. Toronto District School Board, 2008 HRTO 31, she should be removed as a party.
6Further, the respondent submits that SIR Corp. is the proper respondent as all of the material facts plead concern the working conditions of the applicant while employed with the corporation.
7Initially, the applicant did not file a response to the Request. By Case Assessment Direction dated December 6, 2013, the applicant was directed to file a response within 14 days.
8On December 18, 2013 the applicant filed a Response. The applicant disputes that SIR Corp. be added as a respondent and the manager be removed. The applicant submits that SIR Corp. was not part of anything that had happened between her and the manager. The applicant seeks clarification on the respondent’s comments regarding the social area.
The Scope of the Application
9As noted by the respondent, the Application appears to relate to the applicant’s employment as a busser with SIR Corp. and engage the ground of sex (as well as reprisal). Thus, it would appear that the applicant should have checked off the box of employment (s. 5 of the Code) as opposed to membership in a trade union or vocational association (s. 6 of the Code) and completed the From 1A as opposed to the Form 1C.
10In addition, the applicant appears to allege that she was treated differently because of her sex, as opposed to her gender identity.
11In order to ensure that the Application is complete the applicant shall complete and file a Form 1A within 14 days of the date of this Interim Decision. The Form 1A is available on the Tribunal’s website at www.hrto.ca.
12The applicant may also wish to consult the Tribunal’s website, www.hrto.ca, under the heading “Useful Links” regarding what assistance may be available to her in completing the Application.
The Request to Add the Applicant’s Employer and Remove the Manager
13Rule 1.7(b) of the Tribunal’s Rules of Procedure provides as follows:
In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
b) add or remove a party
14Section 46.3 of the Code provides that acts or omissions done in the course of an agent of the corporation shall be deemed to be acts and omissions done by the corporation.
15In this case it would appear that the applicant’s employer, SIR Corp. is a proper party. The applicant’s allegations arise out of her employment with SIR Corp. and pertain to her working conditions including hours of work and the dress code. As submitted by the respondent, there are allegations made that if proven could support a finding that the corporation violated the Code. Further the corporation and the named manager consent to the corporation being named as a party. In a case such as this, where there is at the very least an argument that the individually named respondent was acting within the normal course of her duties, that person also has a legal interest in the addition of the corporate respondent as an additional responding party.
16SIR Corp. is therefore added as a party and the style of cause is amended accordingly.
17I now turn to the request to remove the individual respondent. In considering this request, the Tribunal has often referred to the list of factors set out 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.
18The respondents submit that all of the factors support removal of the individual respondent. SIR Corp. is ultimately responsible for the management of its restaurants and imposition of its corporate policies and is able to take full responsibility for the conduct alleged. The respondents further argue that there is not even a prima facie case plead against the manager and that the manager was acting in the course of her employment. The respondents submit that there is no compelling reason to continue the application against the manager and that the manager will remain a material witness who may be summoned to give evidence. The respondents submit that there will be no prejudice to any party if the individual respondent is removed.
19The applicant opposes the removal of the individual respondent on the basis that this is between her and the manager and SIR Corp. was not part of anything. In support of her submission, the applicant attaches a letter she drafted to the manager about her various employment issues. These concerns include those allegations which the applicant appears to be making in the Application including the allegations regarding hours, the negative performance reviews and overall treatment.
20While I can appreciate that the application of some of the factors in Persuad favours removal, other factors such as the central role played by the supervisor suggest otherwise. Given that the Application is at an early stage and based on the information and submissions before me, I find it appropriate at this stage to leave the manager on as a respondent.
21The respondent’s request to remove the individual manager is denied.
Request for Summary Hearing
22In accordance with Rule 19A.5, the Request for Summary Hearing is denied.
Next Steps
23If the respondent wishes to participate in mediation, the respondent shall contact the Registrar within 14 days of the date of this Interim Decision.
24Absent the respondent consenting to mediation, the Application will be set down for two days of hearing.
Summary of Orders and Directions
The applicant shall complete and file a Form 1A within 14 days of the date of this Interim Decision;
SIR Corp. is added as a party and the style of cause is amended accordingly;
The respondent’s request to remove Amanda Leckie as a party is denied;
The Request for Summary Hearing is denied; and
If the respondent wishes to participate in mediation, the respondent shall contact the Registrar within 14 days of the date of this Interim Decision;
Absent consent to participate in mediation, the Application will be set down for two days of hearing.
Dated at Toronto, this 2nd day of April, 2014.
“Signed by”
Kathleen Martin
Vice-chair