Boros v. Toronto Beds & Bedrooms Inc., 2014 HRTO 594

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Boros

Applicant

-and-

Toronto Beds & Bedrooms Inc./The Bedroom Shop Canada and Jeff Reynolds

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 28, 2014

Citation: 2014 HRTO 594

Indexed As: Boros v. Toronto Beds & Bedrooms Inc.

WRITTEN SUBMISSIONS

Michael Boros, Applicant

Thomas Peacock, Representative

Toronto Beds & Bedrooms Inc./The Bedroom Shop Canada, Respondent

Kyle D. Burgis, Counsel

Jeff Reynolds, Proposed Respondent

Kyle D. Burgis, Counsel

1This Application was filed on February 14, 2013, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging disability discrimination with respect to employment and reprisal. The applicant alleges that his employment with the respondent store was terminated because of his ill health and health-related absences.

2A Response was filed by the corporate respondent on April 22, 2013, denying the allegations. The Response alleges that the applicant resigned his employment.

3A hearing on the merits was scheduled for December 6, 2013; however, this date was converted to preliminary hearing because of several requests for orders sought by the applicant, including requests for production of business documents, cell phone records and a request to add Jeff Reynolds, the owner of the corporate respondent, as an individual respondent to the Application.

4Subsequent to the preliminary hearing, a number of the outstanding preliminary issues were resolved or withdrawn by way of the parties' submissions, as well as addressed by a disclosure order on consent.

5In Interim Decision 2014 HRTO 484, the Tribunal required the applicant to clarify whether or not he continued to request that Mr. Reynolds be added as an individual respondent. The applicant confirmed on April 15, 2014, that he maintains the request to add Mr. Reynolds to the Application. The applicant argues that Mr. Reynolds should be added as an individual respondent, not only because of his discriminatory actions, but because of Mr. Reynolds' efforts to dispose of the business, despite his statement to the Tribunal at the preliminary hearing that he intended to remain in business.

6The corporate respondent and proposed respondent filed joint submissions on April 25, 2014, opposing the request to add Mr. Reynolds. They argue that there is no compelling reason to add Mr. Reynolds as there are no allegations regarding Mr. Reynolds personally for which the corporate respondent would not be deemed vicariously liable. While they acknowledge the business is for sale, they submit that it is highly unlikely the business will be sold in light of past unsuccessful sale attempts and this current pending litigation.

PARTIES' SUBMISSIONS

7The applicant requests that Jeff Reynolds be added as an individual respondent to the Application because the allegations relate directly to Mr. Reynolds' conduct. The applicant notes the store named in the Application where the applicant was employed is closed and that Mr. Reynolds is now attempting to sell the remainder of the business. The applicant argues that Mr. Reynolds should be added as an individual respondent because the sale of the company is entirely contrary to Mr. Reynolds' oral submissions at the preliminary hearing where he claimed the business was not for sale. The applicant provided a copy of the real estate advertisement noting that, as of April 3, 2014, the sale listing was posted on the real estate website for 119 days and, consequently, Mr. Reynolds knew his business was for sale at the time of the preliminary hearing. The applicant further submits that the corporate respondent has previously disregarded a Ministry of Labour order. The applicant argues that because of these concerns the applicant should be permitted to add Mr. Reynolds to the Application.

8The respondent and proposed respondent oppose the request to add Mr. Reynolds. They argue that the allegations against Mr. Reynolds relate to his role as owner of the company. They submit that corporate entity accepts liability for the allegations as against Mr. Reynolds and there is no issue of the corporate respondent's ability to respond or provide a remedy in this proceeding. Mr. Reynolds states that he disagrees with the applicant's recollection of what he said at the preliminary hearing. The respondent and proposed respondent assert that, if the business is sold prior to the completion of this proceeding, liability would pass to the new owner. Nevertheless, at this juncture, Mr. Reynolds does not anticipate that the business will sell because it has been for sale numerous times in the past without any interested buyers. The respondent and proposed respondent submit that adding Mr. Reynolds would unnecessarily add to the complexity of the proceeding.

DECISION

9Rule 1.7(b) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party.

10Tribunal jurisprudence holds that the proper analysis for evaluating a request to add a respondent party is the three-part test articulated in the decision of Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at paragraph 12:

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?

11Having carefully considered the parties' written and oral submissions, I conclude that it is appropriate to add Jeff Reynolds as an individual respondent to the Application.

12I find that there are compelling reasons to include Mr. Reynolds as a respondent party because his interactions with the applicant are directly at issue in this proceeding. The applicant's disability and reprisal allegations pertain exclusively to Mr. Reynolds' conduct and comments. Mr. Reynolds acknowledged that he is the principal of the respondent company and that he was personally involved in the events surrounding the cessation of the applicant's employment.

13I disagree with the respondent's submissions that adding Mr. Reynolds will unduly complicate the process. Mr. Reynolds has been acting on behalf of the corporate respondent throughout this process and has received notice of all matters throughout the course of this proceeding. He appeared personally at the preliminary hearing and made submissions addressing the various issues, including assuring the Tribunal that the corporate respondent was actively operating and that he had no intentions of closing or selling the business.

14In considering whether it would be fair to add Mr. Reynolds, I note that there may be issues of collectability of financial remedies given the alleged efforts to sell the business. One circumstance where it may be appropriate to add an individual as a respondent party is when there is doubt that the corporation continues to exist or that it has the resources to pay compensation in the event that discrimination is found to have occurred: see, Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 at paragraphs 52-57.

15Based on the applicant's recent submissions and supporting documentation, it appears that there were efforts by Mr. Reynolds, contemporaneous with the December 6, 2013 preliminary hearing, to dispose of the business. The applicant attached a copy of an April 2014 commercial real estate advertisement showing that the respondent store has been listed for sale since approximately December 2013. In light of this information, there appears to be a reasonable basis to doubt the assurances given by Mr. Reynolds at the preliminary hearing that he did not intend to sell the business and reason to be concerned about the applicant's ability to secure a remedy if the business is sold.

16In addition to the issue of financial compensation, I note that the applicant stated in the Application that he was seeking a remedy in relation to Mr. Reynolds, specifically requesting that Mr. Reynolds' conduct with his employees be monitored. While the viability of such a remedy is unlikely, it appears that, from the commencement of proceeding, the applicant sought to have Mr. Reynolds be held personally accountable for his alleged conduct.

17In conclusion, I find that this is an appropriate case to exercise my discretion to add Mr. Reynolds as an individual respondent to the Application. Accordingly, I order that Jeff Reynolds be added as a respondent to this Application and the style of cause be amended to include his name. Within 21 days of the date of this Interim Decision, Mr. Reynolds is directed to file a Form 2 Response. The applicant may file an amended Reply within seven days from receipt of the Response.

18I am not seized.