McClinchey v. Regional Tourism Organization Four Inc., 2015 HRTO 1560

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Heather McClinchey

Applicant

-and-

Regional Tourism Organization Four Inc., Collabrion Inc., Huron Business Development Corporation, and David Peacock

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: November 18, 2015

Citation: 2015 HRTO 1560

Indexed as: McClinchey v. Regional Tourism Organization Four Inc.

WRITTEN SUBMISSIONS

Heather McClinchey, Applicant

Melissa Mark, Counsel

Regional Tourism Organization Four Inc. and David Peacock, Respondents

Christopher McClelland, Counsel

1The purpose of this Interim Decision is address the applicant’s request to (1) withdraw her Application against Her Majesty the Queen (“HMQ”) in Right of Ontario as represented by the Ministry of Tourism, Culture and Sport, and (2) add Huron Business Development Corporation (“HBDC”) as a respondent to the Application.

2On September 11, 2015, the applicant filed a Request to Withdraw her Application against HMQ in Right of Ontario as represented by the Ministry of Tourism, Culture and Sport. None of the other parties filed a Response to the Request, and the time for doing so has now passed. Therefore, the Tribunal grants the applicant’s Request. The title of proceeding is amended accordingly.

3On September 11, 2015, the applicant also filed a Request for an Order During Proceedings to add HBDC as a respondent to the Application. In her submissions in support of her Request, she stated that she was self-represented when she filed her Application, and was confused as to who her employer was. On September 28, 2015, the respondents Regional Tourism Organization Four Inc. and David Peacock consented to the Request on the condition that the applicant files an amended Application, and that the current respondents be given the opportunity to file an amended Response. The respondent Collabrion Inc. and the proposed respondent, HBDC, did not file a Response to the Request, and the time for doing so has now passed.

4In 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.

5In the case at hand, only the first and third questions are applicable because the applicant is proposing the addition of an organization respondent.

6With respect to the first question, the applicant has made allegations that could support a finding that HBDC violated the Code. With respect to the third question, the hearing of the merits of the Application has not yet been scheduled, the applicant was self-represented when she initially filed her Application, none of the other respondents or HBDC have identified any prejudice in adding HBDC as a respondent to the Application, and if there is a finding of discrimination, there may need to be a remedial order against HBDC.

7Therefore, the applicant’s Request is granted. The title of proceeding is amended accordingly. However, I also agree with the respondents Regional Tourism Organization Four Inc. and David Peacock that the applicant should file an amended Application, and that the current respondents should file amended Responses.

8The Tribunal therefore makes the following orders and directions:

1. The Application is withdrawn against HMQ in Right of Ontario as represented by the Ministry of Tourism, Culture and Sport.

2. HBDC is added as a respondent to the Application.

3. Within 14 days of the date of this Interim Decision, the applicant shall file an amended Application with the Tribunal, which clarifies her allegations of discrimination against each named respondent.

4. Within 35 days of the Tribunal sending the amended Application to the respondents, they shall file an amended Response (Regional Tourism Organization Four Inc., Collabrion Inc., and David Peacock) or simply a Response (HBDC) with the Tribunal.

5. Within 14 days of Tribunal sending the Responses to the applicant, she shall deliver to the respondents and file with the Tribunal an amended Reply.

9I am not seized of this matter.