Bakhshandeh v. 2239779 Ontario Inc. o/a Country Style Donut, 2014 HRTO 536

Human Rights Tribunal of Ontario

B E T W E E N:

Behnaz Bakhshandeh

Applicant

-and-

2239779 Ontario Inc. o/a Country Style Donut and Jinling Liang

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: April 14, 2014

Citation: 2014 HRTO 536

Indexed as: Bakhshandeh v. 2239779 Ontario Inc. o/a Country Style Donut

WRITTEN SUBMISSIONS

Behnaz Bakhshandeh, Applicant

Kingsley Laurin, Counsel

2239779 Ontario Inc. o/a Country Style Donut and Jinling Liang, Respondent

Melody Jahanzadeh, 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 reprisal or threat of reprisal. The applicant alleges that the respondent ignored her illnesses, prevented her from attending medical appointments, refused to accept the diagnoses of the applicant’s physicians, prevented her from working because of the treatment she was receiving and attempted to invade her privacy regarding her medical issues.

2This Interim Decision addresses a Request for an Order During Proceedings filed by the applicant on March 12, 2014. The applicant seeks an order adding Jinling Jiang as an individual respondent to the Application. The applicant also seeks an order amending the Application to add disability as an alleged ground of discrimination and amending the remedies the applicant seeks to include: 1) $20,000.00 in general damages, 2) posting of the Code in a prominent location, 3) Human Rights 101 training for the proposed individual respondent and 4) a letter of employment.

3The applicant submitted that Ms. Liang, the proposed individual respondent, is the owner and manager of the organizational respondent and that it is Ms. Liang’s actions throughout the applicant’s employment with the organizational respondent that are in issue in this Application. The applicant submitted that Ms. Liang has been involved in the proceeding from its commencement and given the nature of the allegations would be expected to testify at the hearing. The applicant also submitted that the respondents have been on notice for some time that the applicant would seek to amend the Application. The applicant submitted that she has observed that the organizational respondent has been closed during normal business hours, which raises a concern that it may no longer be operating or that it is in the process of closing. Consequently, the applicant submitted that adding the individual respondent is necessary to ensure that a respondent is in place that can meet any remedy the Tribunal may order.

4The organizational respondent and proposed respondent (the “respondents”) filed a Response to a Request for an Order on March 26, 2014. The respondents stated that they consent to the applicant’s request to amend the Application regarding the grounds claimed and remedy, but oppose the request to add Ms. Liang to the Application. The respondents submitted that it is unnecessary to add Ms. Liang because the organizational respondent does not dispute its deemed vicarious liability regarding Ms. Liang’s action. The respondents submitted that the organizational respondent has been in operation for approximately 20 years and has been owned by Ms. Liang since 2010. The respondents submitted that the organizational respondent is obliged under its lease and franchise agreement to continue operations for the next several years. Accordingly, the respondents submitted that the organizational respondent has the means and ability to implement any potential damages awarded against it.

Analysis and Decision

5Section 5 of the Code states as follows:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability

6Section 46.3(1) states as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

7The 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?

8The 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.

9In my view, the applicant has not provided sufficient reason to question the organizational respondent’s ability to implement any remedy the Tribunal may order. However, Ms. Liang’s alleged actions are central to the Application and, assuming the applicant’s allegations are proven, her actions arguably amount to harassment under section 5(2) of the Code. Pursuant to section 46.3(1) of the Code, the organizational respondent would not be vicariously liable for such harassment. Accordingly, there is an issue about whether the organizational respondent could meet any remedies the Tribunal may order regarding harassment in this matter. In my view, this is a compelling juridical reason for adding Ms. Liang as an individual respondent. Ms. Liang has been involved in the proceeding throughout and it would seem very likely that she will testify at the hearing in any event. Accordingly, adding Ms. Liang will not affect the hearing process or prejudice the respondents.

Order

10The Tribunal orders as follows:

1. The Application is amended to include the prohibited ground of disability;

2. Jinling Liang is added as an individual respondent to the Application and the style of cause amended accordingly; and.

3. The Application is amended to include the following requested remedies: 1) $20,000.00 in general damages, 2) posting of the Code in a prominent location, 3) Human Rights 101 training for the individual respondent and 4) a letter of employment.

11I am not seized