HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Kergan
Applicant
-and-
Bark-er Pets Inc. and Pet Valu Canada Inc.
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Kergan v. Bark-er Pets Inc.
WRITTEN SUBMISSIONS
David Kergan, Applicant
Victoria Shen, Counsel
1The purpose of this Interim Decision is to deal with the applicant’s Request to amend her Application.
2On December 9, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that Bark-er Pets Inc. (the “respondent franchisee”) discriminated against him with respect to employment because of disability. Specifically, he alleged that he was unable to apply for a job with the respondent franchisee because the job application form was discriminatory.
3On January 19, 2015, the respondent franchisee filed a Response, which denied the allegation of discrimination. Specifically, the respondent franchisee denied that the job application form was discriminatory.
4On February 9, 2015, the applicant filed a Reply, which maintained that the job application form was discriminatory.
5On May 19, 2015, the parties attended a mediation, which did not result in a settlement of the case.
6The hearing of the merits of the Application was initially scheduled for November 26-27, 2015, but was cancelled and will be rescheduled.
7On June 17, 2015, the applicant filed a Request for an Order During Proceeding to amend the Application to (1) add the franchisor, Pet Valu Canada Inc., as a respondent, and (2) withdraw his request for special damages and reduce his request for general damages from $25,000 to $10,000.
8Neither the respondent franchisee nor Pet Valu Canada Inc. has filed a Response to the applicant’s Request, and the time for doing so has now passed.
9I will first address the applicant’s request to add Pet Valu Canada Inc. as a respondent to the Application. In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following test for adding a respondent at para. 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?
The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. 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, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.
10In the case at hand, only the first and third questions are applicable because the applicant is proposing the addition of an organization respondent.
11With respect to the first question, in his submissions, the applicant stated that the respondent franchisee has made allegations which, if proven, would give rise to a violation of the Code by Pet Valu Canada Inc. Specifically, Pet Valu Canada Inc. provided the respondent franchisee with the job application form, represented that it is a standard form used by all of its franchisees, and directed the respondent franchisee to use the form to solicit job applications.
12With respect to the third question, the applicant stated that he was self-represented when he filed his Application, and was not aware that the job application form used by the respondent franchisee was provided by Pet Valu Canada Inc.; there is no prejudice to the respondent franchisee in adding Pet Value Canada Inc. as a respondent; an order against Pet Valu Canada Inc. may be necessary in order to address any findings of discrimination; the request is timely because it was made within the one-time time limit in s. 34(1) of the Code; and the request is being made well in advance of the hearing.
13I accept the applicant’s uncontradicted submissions. The Tribunal therefore grants the applicant’s request to add Pet Valu Canada Inc. as a respondent to the Application. The title of proceeding is amended accordingly.
14The Tribunal’s Registrar will deliver a copy of the Application, the respondent franchisee’s Response, the applicant’s Reply, and a copy of this Interim Decision to Pet Valu Canada Inc., which is directed to file a Response to the Application within 35 days of the date of this Interim Decision.
15I will next address the applicant’s request to withdraw his request for special damages and reduce his request for general damages from $25,000 to $10,000 in his Application.
16In his submissions, the applicant stated that his request to reduce the overall amount of monetary compensation that he is seeking does not prejudice the respondent franchisee.
17I accept the applicant’s uncontradicted submissions. The Tribunal therefore grants the applicant’s request to withdraw his request for special damages and reduce his request for general damages from $25,000 to $10,000 in his Application.
18The Tribunal therefore makes the following orders and directions:
The applicant’s request to amend his Application to add Pet Valu Canada Inc. as a respondent is granted.
The Tribunal’s Registrar will deliver a copy of the Application, the respondent franchisee’s Response, the applicant’s Reply, and a copy of this Interim Decision to Pet Valu Canada Inc., which is directed to file a Response to the Application within 35 days of the date of this Interim Decision.
The applicant’s request to amend the Application to withdraw his request for special damages and reduce his request for general damages from $25,000 to $10,000 is granted.
19I am not seized of this matter.
Dated at Toronto, this 7th day of August, 2015.
“Signed by”
Ken Bhattacharjee
Vice-chair