Human Rights Tribunal of Ontario

B E T W E E N:

Cindy Falconer

Applicant

-and-

Contours MD and Bernice Perusse

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: April 11, 2014

Citation: 2014 HRTO 517

Indexed as: Falconer v. Contours MD

1This is an Application filed under section 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 sex, family status and age. The applicant also alleges that she experienced reprisal or the threat of reprisal contrary to the Code.

2The Application named Contours MD and named three people as contact persons for the organization. The respondent Contours MD filed a Response for itself along with two of the persons named as contacts, Christina Plaskos and Jane Vassallo. The Response described them as personal respondents, but sought to have them removed as personal respondents as they are principals of the organization which was prepared to accept liability on behalf of those two individuals should liability be established. The third individual, Bernice Perusse, filed a separate Response on her own behalf.

3The Tribunal sent a letter to the applicant asking her to clarify whether she intended to name the three people named as contacts as personal respondents. The applicant has clarified that she does not seek to add Christina Plaskos or Jane Vassallo as respondents given the stated willingness of respondent Contours MD to accept any liability incurred by those individuals. She does seek to add Bernice Perusse as an individual respondent.

4The 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?

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](https://www.minicounsel.ca/hrto/2008/31), at para. [5](https://www.minicounsel.ca/hrto/2008/31), 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.

5In the present case, the Application includes allegations that the conduct of the proposed respondent, who was the applicant’s supervisor, which included unwanted touching, amounted to harassment. The alleged facts, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code. The organizational respondent has stated clearly that it is prepared to accept any liability incurred by Christina Plaskos and Jane Vassallo. It does not make the same assertion with respect to Bernice Perusse. The 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 as she has already submitted a Response. 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.

6As all parties have expressed an interest in attempting mediation, the Application will proceed to mediation.

7I am not seized.