Daniel v. Municipal Maintenance Inc., 2015 HRTO 11

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Daniel

Applicant

-and-

Municipal Maintenance Inc. and Vito Pasceri

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: January 6, 2015

Citation: 2015 HRTO 11

Indexed as: Daniel v. Municipal Maintenance Inc.

WRITTEN SUBMISSIONS

Peter Daniel, Applicant

Marisa Scotto di Luzio, Counsel

1This Application was filed on October 23, 2013 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant, who was self-represented at the time of filing his Application, alleges discrimination in employment on the grounds of race, colour, and place of origin. In his Application, the applicant alleges that a co-worker made a number of comments towards him that, if proven, could constitute a violation of the Code. He identified the co-worker only by first name.

2The respondent filed a Response denying the allegations against it. In the Response, the respondent identified the co-worker’s first and last name, submitted that the applicant never advised management about the co-worker’s alleged conduct, and stated that the co-worker resigned in May 2013.

3A mediation was scheduled for May 29, 2014. On May 22, 2014, legal counsel from the Human Rights Legal Support Centre emailed the Tribunal and the respondent to advise that she was now representing the applicant. She also wrote that in the event that the mediation was not successful, she would be requesting the co-worker’s last known address from the respondent as the applicant intended to file a Request for Order During Proceedings (“RFOP”) to add him as a personal respondent.

4A Notice of Hearing dated July 8, 2014 was issued by the Tribunal scheduling the hearing for December 4 and 5, 2014 (“the initial notice”). The applicant’s legal representative’s office contacted the Tribunal on July 16, 2014 and requested to reschedule the hearing. Later that day, the applicant’s legal representative’s office sent an email advising that the parties had mutually agreed to a number of dates in April 2015. Based upon these dates, and that the request to reschedule was made in a timely manner, the Tribunal issued a Notice of Rescheduled Hearing, scheduling the hearing for April 6 and 7, 2015.

5On July 16, 2014, between the time the applicant requested to reschedule the hearing and his email advising about mutually agreeable hearing dates, the applicant filed a RFOP seeking to add the co-worker, identified as Vito Pasceri, as a personal respondent, and requesting certain amendments to his Application. The RFOP was sent to the co-worker by courier. The respondent did not file a Response to the RFOP, nor did the co-worker, and the time for doing so elapsed.

6In a Case Assessment Direction (“CAD”), the Tribunal permitted the applicant to amend his Application to include the Code ground of reprisal and to amend the remedies that he was seeking, as set out in his RFOP. The Tribunal also directed the applicant to file written submissions pertaining to the delay in his request to add Mr. Pasceri as a personal respondent given that the last incident upon which the Application was based is April 26, 2013. The Tribunal directed the applicant to send copies of his submissions to the respondent and the co-worker. The applicant subsequently filed submissions.

7In a subsequent CAD, the Tribunal directed the applicant to personally serve Mr. Pasceri with the Application, Response, RFOP, submissions, and both CADs (“the delivered materials”), and file proof of personal service with the Tribunal. The Tribunal directed this because the applicant had advised that the materials he couriered to Mr. Pasceri were returned as being unclaimed, although the materials sent by regular mail were not. The Tribunal gave Mr. Pasceri 7 days from the date of personal service to file submissions in response to the applicant’s request to have him added as a personal respondent.

8The applicant filed with the Tribunal an Affidavit of Service confirming that Mr. Pasceri was personally served with the delivered materials on November 18, 2014 by process server. To date, Mr. Pasceri has not filed any submissions or otherwise communicated with the Tribunal.

law and analysis

9Rule 1.7(b) of the Tribunal’s Rules of Procedure (the “Rules”) gives the Tribunal the authority to remove or add a party. This authority is not limited to adding parties (in particular respondents) within the one-year time limit prescribed by s. 34(1) of the Code, although the Tribunal must be mindful of any prejudice to any proposed party added later in the process. See Atanasov v. Baycrest Centre for Geriatric Care, 2014 HRTO 797 at para. 13.

10In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12, the Tribunal articulated the following test when decided whether or not to add a new respondent:

(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?

11In this case, despite an organization also being named as a respondent, the allegations about Mr. Pasceri are central to the Application and, if proven, could support a finding that Mr. Pasceri violated the Code.

12In determining whether or not it would be fair to now add Mr. Pasceri as a personal respondent, with hearing dates set for April 2015, I note that the RFOP seeking to add Mr. Pasceri as a personal respondent was filed some time ago and shortly after the applicant received Mr. Pasceri’s address from the organizational respondent. It is uncertain whether Mr. Pasceri received the applicant’s RFOP and delivered materials that were sent by regular mail, as, according to the applicant, they were not returned, and unclear whether Mr. Pasceri received the Tribunal’s materials which were sent by regular mail and not returned to the Tribunal. Those materials were also sent some time ago. However, it is clear from the Affidavit of Service sworn by the process server that Mr. Pasceri has now received the delivered materials. Despite being given the opportunity to do so, Mr. Pasceri has not filed any submissions with the Tribunal in response to the applicant’s request to add him as a personal respondent. In these circumstances I find it fair to add Mr. Pasceri as a personal respondent and the style of cause is amended accordingly. Any prejudice can be addressed by altering the April hearing dates, if requested by a party and granted by the Tribunal.

13Rule 1.7(a) of the Tribunal’s Rules permits the Tribunal to shorten any time limit set out in its Rules. Accordingly, Mr. Pasceri is directed to file a Response to the Application by Friday, January 23, 2015 by filing it with the Tribunal and by sending a copy to the applicant’s lawyer and the respondent Municipal Maintenance Inc.’s lawyer along with proof of delivery in Form 23. The applicant shall have 10 days from the date that he receives Mr. Pasceri’s Response to file a Reply to that Response. Furthermore, upon the filing of his Response, Mr. Pasceri is directed to immediately deliver any arguably relevant documents to the applicant and the organizational respondent, and they are to deliver their arguably relevant documents to Mr. Pasceri immediately after they receive his Response, or by January 30, 2015 if they do not receive a Response. The deadline for the disclosure of witness statements and documents to be relied upon, (Rules 16.2, 16.3, 17.1 and 17.2) are as set out in the Notice of Hearing dated July 17, 2014 which shall also be sent to Mr. Pasceri.

14As Mr. Pasceri has not previously responded to the Tribunal’s directions in the CADs, in its communications, or responded to the RFOP, his attention is drawn to Rule 5.5 of the Tribunal’s Rules which state:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

15Mr. Pasceri may also benefit from reviewing the resource materials that are found on the Tribunal’s website at www.hrto.ca, including the Respondent’s Guide and the Guide to Preparing for a Hearing before the HRTO. The Tribunal’s Forms, including the Response and the Form 23 are also found on the website.

order

16The Tribunal orders the following:

a. Mr. Pasceri is added as a personal respondent and the style of cause is amended accordingly;

b. Mr. Pasceri has until January 23, 2015 to file his Response with the Tribunal, and to send a copy to the applicant’s lawyer and the respondent Municipal Maintenance Inc.’s lawyer as indicated on a Form 23;

c. The applicant has 10 days from the date that he receives Mr. Pasceri’s Response to file a Reply;

d. Immediately upon filing his Response, Mr. Pasceri is directed to deliver to the applicant and the respondent Municipal Maintenance any arguably relevant documentation that he has. The applicant and the respondent Municipal Maintenance Inc. are to deliver their arguably relevant documentation to Mr. Pasceri immediately after they receive Mr. Pasceri’s Response, or by January 30, 2015 if a Response is not filed; and

e. The other deadline for the disclosure and filing of witness statements and documents to be relied upon (Rules 16.2, 16.3, 17.1 and 17.2) shall be as set out in the Notice of Hearing, a copy of which will also be sent to Mr. Pasceri by the Tribunal.

17I am not seized with this matter.