HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Valerio Torcato
Applicant
-and-
Fulton Engineered Specialties Inc. and Walter Widla
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Torcato v. Fulton Engineered Specialties Inc.
WRITTEN SUBMISSIONS
Valerio Torcato, Applicant
Brenda Culbert, Counsel
Introduction
1This Interim Decision addresses the applicant’s request to amend his Application to add a personal respondent and to change the monetary remedy sought in the Application.
2By Application filed on June 25, 2013, the applicant alleged that the respondent discriminated against him because of age contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant alleged that the respondent discriminated against him by making harassing comments and laying him off because of his age. The applicant was self-represented at the time that he filed his Application. In his Application, he sought $360,000 as a monetary remedy as well as other non-monetary and public interest remedies.
3The hearing of the Application is scheduled for July 22, 2014.
Request to Amend Application
4The applicant is now represented by counsel. By Request for Order During Proceedings (“RFOP”) dated January 27, 2014, the applicant sought to amend his Application to add the President of the organization, Walter Widla, as a personal respondent to the Application. He also sought to change the monetary remedy sought in the Application to $75,759.10. In his Application, the applicant linked his remedial request to the denial of an extension of his life insurance coverage. In the RFOP, the applicant’s counsel clarified that the applicant wishes to seek $30,000 as compensation for injury to dignity, feelings and self-respect and lost wages up to the date of the hearing.
5The applicant delivered his RFOP to Mr. Widla as the representative of the corporate respondent. Neither the corporate respondent nor Mr. Widla responded to the applicant’s RFOP.
Amendment to add personal respondent
6The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
7When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 (“Persaud”). These factors focus mainly on whether the corporate respondent is responsible for the conduct of the proposed personal respondent, and whether there is a compelling legal reason for an individual to be named as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his or her conduct is a central issue in the case and extends beyond implementing organizational policies or practices. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 and Persaud at para. 5.
8Having considered the factors set out in Smyth and Persaud, I find it appropriate to grant the applicant’s request to add Mr. Widla as a personal respondent. All of the applicant’s allegations relate to alleged conduct by Mr. Widla. It is Mr. Widla who the applicant claims made harassing comments based on his age. It is also Mr. Widla who the applicant claims made the decision to lay him off. As such, Mr. Widla’s conduct is a central issue in this case. This weighs in favour of adding him as a personal respondent.
9In addition, one of the relevant factors set out by the Tribunal in Persaud was whether there is any issue (i.e. concern) as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement. I find that there is such a concern in this case in light of the corporate respondent’s statement in its Response that the “company has been insolvent for the past few months and has been hanging on by a hair”.
10In light of these circumstances, I find it appropriate to grant the applicant’s request to add Mr. Widla as a personal respondent.
REQuest to amend remedy
11In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
12Having considered these factors, I grant the applicant’s request to amend the remedy sought in his Application. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.
13This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.
Order
14For the reasons set out above, the Tribunal orders as follows:
a. The applicant’s request to add Mr. Widla as a personal respondent is granted.
b. The applicant’s request to change the remedy sought in his Application to $75,759.10 is granted.
c. Within 21 days of the date of this Interim Decision, the personal respondent may file a Response on his own behalf to supplement the account of the facts set out in the corporate respondent’s Response.
d. Within 14 days of receiving any Response from the personal respondent, the applicant may file an amended Reply addressing this Response.
e. The corporate respondent is reminded of its obligation to disclose to the applicant all arguably relevant documents in accordance with Rule 16.1 of the Tribunal’s Rules of Procedure. As set out in the Notice of Hearing, the parties were required to disclose these documents by March 19, 2014. It appears that the corporate respondent has to date failed to make this disclosure.
f. The deadline for the disclosure of the parties’ witness statements and documents to be relied upon at the hearing will remain June 9, 2014.
15I am not seized.
Dated at Toronto, this 28th day of April, 2014.
“Signed by”
Jo-Anne Pickel
Vice-chair```