Vanderhaeghe v. Hollister Motors, 2015 HRTO 1196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Vanderhaeghe Applicant

-and-

Hollister Motors, Brad Hollister, and Leigh Hartnett Respondents

Lorrie DeGroote Applicant

-and-

Hollister Motors, Brad Hollister, and Leigh Hartnett Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 10, 2015 Citation: 2015 HRTO 1196 Indexed as: Vanderhaeghe v. Hollister Motors

WRITTEN SUBMISSIONS

Laura Vanderhaeghe and Lorrie DeGroote, Applicants Grace Vaccarelli, Counsel

Hollister Motors, Brad Hollister, and Leigh Hartnett, Respondents Christopher Sinal, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address the request made by Hollister Motors and Brad Hollister (the “Hollister respondents”) that the Tribunal remove Mr. Hollister as a personal respondent to this Application.

BACKGROUND

2The applicants filed Applications against the respondents alleging discrimination and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Ms. Vanderhaeghe alleged discrimination because of sex and creed. Ms. DeGoote alleged discrimination because of sex as well as sexual solicitation or advances. Both Ms. Vanderhaeghe and Ms. De Groote alleged that they were subject to a poisoned work environment due to comments and actions by the personal respondent Leigh Hartnett and their employer’s failure to address the issue. Ms. Vanderhaeghe also alleged that she experienced discrimination as a result of being a Jehovah’s Witness. Ms. DeGroote alleged that she experienced direct sexual harassment from Mr. Hollister and also discrimination on the basis of disability when her employer demanded that she see a physician of his choosing.

Request to Remove the Personal Respondents

3By Requests for Order During Proceedings (“RFOPs”), the Hollister respondents requested that the Tribunal remove Mr. Hollister as a personal respondent to both Applications. The applicants opposed these Requests. The personal respondent Leigh Hartnett did not respond to the RFOPs.

4In their RFOPs, the Hollister respondents rely upon the well-established criteria for removal of a personal respondent as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, whereby this Tribunal applies the following factors when considering such requests:

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?

5With regard to the first three factors: there is a corporate respondent, Hollister Motors, alleged to be liable for Mr. Hollister’s alleged conduct; no issue has been raised concerning the corporate respondent’s alleged deemed or vicarious liability for Mr. Hollister’s conduct; and there appears to be no issue as to the ability of the corporate respondent to respond to or remedy the infringements alleged against the Hollister respondents.

6The issue is whether there is any compelling reason to continue the proceeding as against Mr. Hollister. In my view there is. The Hollister respondents described Hollister Motors as a family-owned corporation. Mr. Hollister is the Dealer Principal and an officer of the corporation. The nature of Mr. Hollister’s alleged conduct, if proven, could make it appropriate to award a remedy specifically against him if an infringement is found. The Divisional Court has made clear that management employees who fail to take appropriate action to prevent discriminatory harassment in the workplace once they know of the offending conduct may be found personally liable for infringing an employee’s right to a workplace free from sex discrimination under s. 5(1). See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div.Ct.) at para. 37.

7For these reasons, I deny the request to remove Mr. Hollister as a personal respondent.

Request for summary hearing

8The Hollister respondents filed Requests for a Summary Hearing in regards to both Applications. These requests are denied. Pursuant to Rule 19A.5 of the Tribunal’s Rules of Procedure, the Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request. In the circumstances of this case, I will simply note that the issues raised by the applicant and respondents may only be resolved after hearing evidence in a hearing on the merits. The Tribunal’s summary hearing process is used to deal with those applications where the allegations may be legally insufficient to constitute a case to be answered. This is not the case here. Summary hearings do not involve the hearing of any evidence. In order to address the respondents’ refutation of the applicant’s allegations, a hearing on the merits must be held. Therefore the Request for a Summary Hearing is denied.

ORDER

9The Hollister respondents’ request to remove Mr. Hollister as a personal respondent is denied.

10The Request for a Summary Hearing made by the Hollister respondents is denied.

11As all parties have agreed to mediation, the Registrar will schedule a joint mediation of these two Applications and advise the parties of the date, time, and location of the mediation by Notice of Mediation.

12I am not seized of this matter.