Mark Ashfield v. Nathan Taus and 1817171 Ontario Inc. operating as Fox and Fiddle, 2015 HRTO 1700

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Ashfield

Applicant

-and-

Nathan Taus and 1817171 Ontario Inc. operating as Fox and Fiddle

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: December 17, 2015

Citation: 2015 HRTO 1700

Indexed as: Ashfield v. Taus

WRITTEN SUBMISSIONS

Mark Ashfield, Applicant

Maija C. Laitinen, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The individual respondent filed a Response to the Application and the applicant subsequently filed a Reply and a Request for Order During Proceedings (“RFOP”). This Interim Decision addresses the applicant’s RFOP in which he seeks to add 1817171 Ontario Inc. operating as Fox & Fiddle as a corporate respondent in these proceedings and requests that this matter be deferred pending the resolution of a matter in criminal court. Neither the individual respondent nor the proposed corporate respondent filed a response to the RFOP.

3Along with the RFOP, the applicant filed a Statement of Delivery indicating that he had provided the individual respondent with a copy of the RFOP. Additionally, the applicant provided a copy of documentation regarding a Corporate Enquiry from the Ministry of Consumer and Commercial Relations which indicates that the individual respondent is the sole Director/Officer of the proposed corporate respondent. The applicant also included a copy of an August 19, 2015 Employment Standards Officer Decision which identifies the individual respondent as “the employer”. In the circumstances, I am satisfied that given the delivery to the individual respondent, there has been effective delivery to the proposed corporate respondent.

4The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that 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 that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. 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, and prejudice to the other parties.

5According to subsection 46.3 of the Code, a corporate respondent may be found liable for certain actions of its officers agents or employees, among others:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

6In the present case, the Application includes allegations that the individual respondent subjected him to sexual harassment, that he terminated his employment for reasons contrary to the Code and that the individual respondent advised him that if the applicant ever “crossed him”, he would ensure that the applicant never again worked in town. There are facts alleged, which if proven, could support a finding that the corporate respondent is liable for a violation of the applicant’s rights under the Code. In his RFOP, the applicant indicates that the corporate respondent was not originally named in the Application as he had drafted it himself, but now has legal representation. Especially where the individual respondent is the sole Director and Officer of the proposed organizational respondent, there is no apparent prejudice to any party in adding the proposed respondent. In the circumstances, it appears that it would be appropriate to add the proposed corporate respondent as a party to the proceedings. The applicant’s Request for Order is granted and the style of cause is immediately amended accordingly.

7The corporate respondent shall be provided with a copy of the Application, the personal respondent’s Response and the applicant’s Reply, along with a copy of this Interim Decision, and is directed to file a Response to the Application (in Form 2) not later than 35 days after the date of this interim decision.

8In his RFOP, the applicant also seeks to defer the hearing of the Application, due to the fact that he has been criminally charged with an offence against the individual respondent and a condition of his bail is that he not “associate or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with Nathan Taus”. He submits that in accordance with his bail conditions, he will “be unable to testify fully and openly at the hearing before the Human Rights Tribunal on January 7 and 8, 2016 as it may be prejudicial to [his] position in the criminal proceedings”. He states that for the same reason, he will be “unable to meaningfully participate in the mediation-adjudication process”. The deferral he seeks is “sine die pending resolution of the criminal matter”. The documentation indicates that the charges were laid in respect of allegedly uttering threats to cause bodily harm between October 13 and 15, 2015.

9The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

10It is not apparent that there is any overlap between the criminal charges and the matters included in this Application. It appears, rather, that the applicant seeks deferral solely on the basis of the above-noted conditions of his bail.

11In the circumstances, the hearing dates of January 7 and 8, 2016 are adjourned. In filing his Application, however, the applicant has commenced a legal proceeding and is obliged to take the steps necessary to participate in these proceedings. By January 29, 2016, the applicant will make efforts to have the conditions of his bail varied in order to permit him to appear at the Tribunal hearing into this Application. By January 29, 2016, he will advise the Tribunal and the respondents as to what such efforts he has made and the results of his efforts. At this time, the Application is not deferred. Should the applicant fail to comply with this direction of the Tribunal, his Application may be dismissed as an abuse of process.

ORDERS

12The Tribunal directs as follows:

1. The proposed corporate respondent is added as a respondent to this Application and the style of cause is immediately amended accordingly;

2. Within 35 days the corporate respondent must deliver and file a Form 2, Response to the Application, and/or advise whether it adopts as its own the Form 2, Response filed by the individual respondent;

3. In the event that the corporate respondent files a new Form 2, Response then the applicant may file a Reply within two weeks of the receipt of the Response;

4. The scheduled hearing dates of January 7 and 8, 2016 are adjourned;

5. By January 29, 2016, the applicant will make efforts to have the conditions of his bail varied in such a way that will permit him to participate in the Tribunal hearing of this Application. By January 29, the applicant will advise the Tribunal and the respondents of what such efforts he has made and the result of his efforts.

13I am not seized.