Washington v. Soul Restaurants Canada Inc., 2015 HRTO 1031

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dayton Washington

Applicant

-and-

Soul Restaurants Canada Inc. and Jessica Chorazy

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: August 4, 2015
Citation: 2015 HRTO 1031
Indexed as: Washington v. Soul Restaurants Canada Inc.

APPEARANCES

Dayton Washington, Applicant Self-represented

Soul Restaurants Canada Inc., Respondent Kathleen Amizial, Representative

Jessica Chorazy, Respondent Richard Davies, Representative

Introduction

1This Application alleges discrimination with respect to employment because of sexual orientation contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On April 2, 2015, the Tribunal issued a Case Assessment Direction advising the parties a summary hearing would be held by teleconference to determine whether this Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application would succeed, and also to make submissions with respect to the removal of the personal respondent as a party.

SUMMARY HEARING

3The test the Tribunal applies at this stage in the process is whether an application has “no reasonable prospect of success”. It is the role of the Tribunal to examine the allegations and determine whether or not an application should move to the next stage in the hearing process. If the Tribunal determines that an application has no reasonable prospect of success it will be dismissed. In some cases, the Tribunal finds that only part of the application will move ahead, while part is dismissed.

4The applicant’s role in the summary hearing is to describe to the Tribunal the evidence he proposes to call to support his belief that he experienced discrimination. It is not up to the applicant to demonstrate that an application has a reasonable prospect of success, nor is it sufficient that the application is considered unlikely to succeed.

5The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Discrimination in the legal sense requires proof that unfair treatment is based, at least in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment.

6The applicant worked at the respondent restaurant from January 12, 2015 to February 12, 2015, when his employment was terminated.

7The applicant alleges that while employed at the respondent restaurant, he was harassed by the personal respondent who addressed him as “queer”. He also alleges she said he could have a particular set of keys and could lose them because they were “gay”.

8The applicant makes other allegations about inappropriate behaviour toward him by the personal respondent, including accusing him of not wearing a hair net, being reckless and unable to keep a set of keys without losing them, delaying production and taking a break when not allowed to do so.

9The applicant alleges he approached the store manager to make a complaint and when he began to tell her about the harassing comments based on a prohibited ground in the Code, the store manager stopped him and said she had heard a different story. The applicant tried to continue to tell his story but felt unable to do so. He alleges he felt the store manager already had taken sides and was not actively listening to him.

10The applicant alleges he went home and tried to find a telephone number for Human Resources for the respondent but was unable to do so. He alleges the respondent did not investigate his complaints in any way. The applicant alleges he was terminated three days after speaking to the store manager.

11In addition to the allegations against the personal respondent, the applicant alleges “systemic issues” that include there being no private crew room or manager’s office to discuss problems or issues, which in turn led to other employees being aware of another employee’s issues. He further alleges shortcomings in the respondent’s training program, security of employee’s personal information and staffing. He also makes allegations that include a wind tunnel being created by the doors, the fire exit being blocked and the employees’ change room being small.

12The respondent restaurant submits the applicant raised no issues until after he was terminated and that it investigated the applicant’s issues once it received this Application, which was its first notice of the allegations.

13The respondent restaurant submits the applicant’s allegations are not credible because had he raised an issue before he was terminated, it would have been brought to the attention of head office and it was not. The respondent restaurant submits the applicant was terminated for work performance issues.

14The personal respondent submits the applicant did not like taking instructions from her because she was younger and female. She further denies his allegations that she referred to him as a homosexual or made any comments to him about his sexual orientation. She further submits that at her age, sexual orientation is a non-issue, and the applicant’s complaints have no basis. She points out that she complained about the applicant because he looked at photos on her phone without permission.

15After reviewing and considering all of the submissions of the parties, and accepting the applicant’s allegations as true for the purposes of this proceeding, I cannot find that there is no reasonable prospect that the applicant can succeed under the Code but this is limited solely to the alleged comments regarding the applicant’s sexual orientation and whether or not the respondent restaurant investigated the applicant’s complaints adequately.

16The following allegations are dismissed:

a. those set out in paragraph 11, above;

b. the “Berry Dingles incident” with the exception of how this impacted on the applicant’s discussing and reporting allegations of human rights violations;

c. that the personal respondent accused the applicant of delaying the production of chicken and that she slammed a door so that chicken legs hit him in the chin;

d. what the applicant terms “systemic issues” such as the general layout and design of the store, with the exception of how this impacted on discussing and reporting allegations of human rights violations; other employees being aware of another employee’s issues; and shortcomings in the respondent’s training program, the security of employee’s personal information and staffing.

17The Tribunal has no power to address general allegations of unfairness, nor of allegations that have no connection to the Code. The information about a lack of private space in which the applicant could raise with a manager his allegations of human rights violations may be relevant to the context of the complaint process. The extent to which these contextual facts will be allowed will be determined by the adjudicator at the hearing.

18The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

removal of personal respondent

19When the Response, which is not a full Response, was filed, it was filed on behalf of both the respondent restaurant and the personal respondent.

20At the summary hearing, the personal respondent advised she no longer works for the respondent restaurant, and she had her own representative present. The respondent restaurant advised if the personal respondent was found to be negligent in any way or if a monetary award was made against her, it would not cover her.

21The personal respondent submitted she was an employee at the time of the alleged incidents and the respondent restaurant should be vicariously liable for any of her actions at the time.

22The applicant submitted the personal respondent should not be removed as a party because she made the comment. He does not intend to seek a monetary remedy from the personal respondent but wants her to receive “sensitivity training” in order that she does not repeat the alleged behaviour. In his view, the respondent restaurant is also vicariously liable.

23Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

24The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

25The Tribunal further expanded on these principles 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:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. 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.

26I find there is an issue with respect to whether the respondent restaurant will be vicariously liable for the alleged comments made by the personal respondent which may be outside the scope of her employment, and the respondent restaurant states it will not be liable for her actions. As such, based on the factors above, the personal respondent is not removed as a party.

order and next steps

27The Application will continue to the next stage in the hearing process. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

28The respondent restaurant shall file a full Form 2 Response to the Application, it shall do so within 35 days of its receipt of this Interim Decision.

29The personal respondent shall also file a full Form 2 Response to the Application within 35 days of her receipt of this Interim Decision.

30The applicant shall file any Form 3 Reply within 14 days of his receipt of the Form 2 Responses.

31The applicant and the personal respondent shall advise the Tribunal by no later than October 2, 2015 if they are interested in participating in mediation to try and resolve this matter.

32If not all parties are interested in participating in mediation, this Application shall be set for a one day hearing.