Alex Bulmer v. 92 Peter St. Inc., 2015 HRTO 747

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alex Bulmer

Applicant

-and-

92 Peter St. Inc., Wellington Windsor Holdings Ltd. and Easton’s Group of Hotels Inc.

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: June 8, 2015

Citation: 2015 HRTO 747

Indexed as: Bulmer v. 92 Peter St. Inc.

WRITTEN SUBMISSIONS

Alex Bulmer, Applicant

Michelle Mulgrave, Counsel

92 Peter St. Inc. and Wellington Windsor Holdings Ltd., Respondents

Peigi Ross, Counsel

Introduction

1This Application alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant seeks to amend her Application to:

a. add Easton’s Group of Hotels Inc. (“Easton’s) as a corporate respondent;

b. include additional allegations as set out in subparagraphs 11 to 17 of paragraph 8 of Schedule A to the May 5, 2015 Form 10 Request for an Order During Proceedings (“RFOP”); and

c. add additional public interest remedies as set out in paragraph 14 of the RFOP.

3The hearing in this matter is set for August 10 and 11, 2015.

4The respondents do not object to the amendments. In addition, the applicant advises the address for service on Easton’s is the same as the address for service on the respondents, 92 Peter St. Inc., Wellington Windsor Holdings Ltd. Easton’s operates and manages the Hilton Downtown located at 92 Peter Street and the Residence Inn located at 225 Wellington Street West. She advises that counsel for 92 Peter St. Inc. and Wellington Windsor Holdings Ltd. confirms Easton’s has received service of the pleadings, the RFOP, and all other correspondence in this matter.

Add Corporate Respondent

5Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at paragraph 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

6In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out at paragraph 12 the factors to consider when deciding whether to add a respondent, as follows:

a. Are there allegations made that could support a finding that the proposed respondent violated the Code?

b. 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?

c. Would it be fair, in all the circumstances, to add the proposed respondent?

7The applicant seeks to add Easton’s because in paragraph 2 of the Response, the respondents state that Easton’s operates and manages all the hotels involved in the allegations raised by the applicant. In addition, the respondents provided a Human Rights Policy Statement as part of its arguably relevant documents that referred to Easton’s Employee Handbook. The applicant alleges it appears her allegations involve employees of Easton’s. In addition, correspondence received by the applicant when she complained was copied to the senior vice president of operations for Easton’s.

8Given it appears employees of Easton’s may have been involved in at least one of the applicant’s complaints and Easton’s was aware of the complaint, it is appropriate to add it as a party because there are allegations made that could support a finding that the proposed respondent violated the Code.

Request to Amend Application to add allegations

9The applicant seeks to amend her Application to include new allegations.

10The amendments are allowed in accordance with the test in Wozenilek v. 7-Eleven, 2009 HRTO 926, by “taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice.” There is sufficient time until the hearing to allow the respondents to respond to the new allegations and they do not object to the amendments so there is no prejudice to them.

Request to Amend the Application to Add to the Public Interest Remedies

11For the same reasons as the amendments to the allegations, the amendments to the requested remedy also are allowed.

order

12The Tribunal orders:

a. the applicant’s request to amend her Application to add Easton’s as a respondent is granted.

b. the applicant’s request to include additional allegations as set out in subparagraphs 11 to 17 of paragraph 8 of Schedule A to the RFOP is granted;

c. the applicant’s request to add to the public interest remedies as set out in subparagraphs i. to vi. in paragraph 14 of Schedule A to the RFOP;

d. the applicant shall deliver her amended Application to Easton’s and to 92 Peter St. Inc. and Wellington Windsor Holdings Ltd. by no later than June 12, 2015.

e. Easton’s Response will be delivered to the other parties;

f. The respondents, 92 Peter St. Inc. and Wellington Windsor Holdings Ltd AC, are permitted to file an amended Response, copied to the other parties, within 21 days of this Interim Decision;

g. The applicant may file an amended Reply to respond to Easton’s Response and any amended Responses filed by 92 Peter St. Inc., Wellington Windsor Holdings Ltd. The applicant shall file any Reply with the Tribunal, copied to the respondents, within 35 days of this Interim Decision.

h. Easton’s shall make the disclosure required under Rule 16.1 of the Tribunal’s Rules of Procedure by July 15, 2015.

i. The deadline for the parties’ compliance with the disclosure required under Rules 16.2 and 17 is amended to July 29, 2015.

13I am not seized.