HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hana Gebremariam Applicant
-and-
Silver Crystal Sports Inc. Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Gebremariam v. Silver Crystal Sports Inc.
WRITTEN SUBMISSIONS
Hana Gebremariam, Applicant Richard Miller, Counsel
Silver Crystal Sports Inc., Respondent Gary Luftspring and Jessica Brown, Counsel
1This Application alleges discrimination with respect to employment because of race, colour, place of origin, ethnic origin and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant has filed a Request for Order During Proceedings seeking to amend the Application to add a personal respondent, add an allegation of reprisal, and to include a claim for financial compensation and public interest remedies. The respondent filed a response to this Request, opposing the proposed amendments.
Request to add the personal respondent
3The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at paragraph 12:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
4In regard to the first factor, it is important to note that, at this stage, the things that the applicant says occurred are only allegations that have not been proved. In deciding whether to add the personal respondent, the Tribunal will normally consider whether there would be a finding that the personal respondent violated the applicant's Code-protected rights, assuming that the allegations are found to be true. In this case, it appears to me that there could be a finding that the personal respondent violated the applicant's rights, if the applicant is able to prove that her allegations are true.
5The corporate respondent indicates that there is no issue that it would be liable for the personal respondent’s conduct. I note that as framed, the only issue in the Application is the personal respondent’s conduct. The Application alleges that all the alleged acts of discrimination and harassment were done by the personal respondent personally. The personal respondent would be an important witness at a hearing and in that context, her conduct or alleged conduct will be the central issue in the case. In these circumstances, it appears to me that there is a compelling reason to add the personal respondent as a respondent.
6The applicant indicates that she is not certain of the correct spelling of the personal respondent’s name. The corporate respondent is directed to confirm the name of the personal respondent and whether its representative is also representing the personal respondent. Once the name of the personal respondent has been confirmed, the style of cause will be amended.
Request to add reprisal
7The applicant alleges that she was not hired back after a layoff and that happened in reprisal for having filed the Application. The respondent argues that the applicant has not established a basis for the reprisal allegation because at the time it made its decision about who to hire back, the applicant had not yet filed the Application.
8It appears to me that the issue of whether there was any reprisal will require a factual determination of what happened and when it happened. At this stage of the Application, I find that it is appropriate to allow the applicant to add the allegation of reprisal. I note that it would not make sense to require the applicant to file a new allegation regarding the reprisal allegation. The applicant's request to add reprisal as a ground is granted.
Request to add remedies
9When the Application was filed the applicant did not make a claim for monetary compensation for the alleged discrimination and harassment. She now wishes to amend the Application to include this claim.
10If the applicant is successful in proving her allegations, she would be entitled to monetary compensation. A finding about how much she might be entitled to is an adjudicative decision, made on the basis of the evidence in the case. The amount requested in the Application is not determinative of how much an applicant may be awarded if her allegations are proved. The applicant’s request to add a claim for monetary compensation is granted.
ORDER
11The applicant’s request to add the personal respondent is granted. The corporate respondent will confirm the personal respondent’s name and advise the Tribunal and the applicant if its representative is also representing the personal respondent.
12The applicant's request to add the ground of reprisal is granted. The applicant’s request to add a claim for monetary compensation is also granted.
Dated at Toronto, this 6th day of May, 2015.
“signed by”
Brian Cook Vice-chair