Knox-Heldmann v. 1818224 Ontario Limited, 2015 HRTO 780

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Connie Knox-Heldmann

Applicant

-and-

1818224 Ontario Limited o/a Country Style Donut and Arlene St. Bernard

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: June 11, 2015

Citation: 2015 HRTO 780

Indexed as: Knox-Heldmann v. 1818224 Ontario Limited

1This is an Application filed March 13, 2014, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of age, disability, marital status, and sex in employment.

2The respondent has filed a Response (Form 2) and the applicant a Reply.

3Mediation was scheduled but cancelled at the request of the organizational respondent.

4A hearing in this case was scheduled and then rescheduled at the request of the applicant. The hearing of this case is scheduled to take place on October 5 and 6, 2015.

5On May 25, 2015 the applicant filed a Request for Order seeking to add three individual respondents to the Application.

6The proposed individual respondents and the organizational respondent all oppose the Request.

7The Request is allowed in part.

8The applicant relies on the factors in Smyth v. Toronto Police Services, 2009 HRTO 1513, in support of the Request. In that Decision the Tribunal concluded that when determining a request to add a respondent, the following three questions will be of importance:

(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. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. 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.

9Considering these principles, I find that it is appropriate to add Arlene St. Bernard to the Application as a person respondent. I do so for the following reasons: The applicant asserts that Ms. St Bernard is an owner of the business and this is not disputed by the respondents. There are allegations made about the conduct of the personal respondent that could amount to a violation of the Code. I also note that it is alleged that Ms. St. Bernard terminated the applicant’s employment. Finally, I have considered that the applicant asserts that the store in which the applicant works has been closed and that there may be a concern with the organizational respondent’s ability to respond to a monetary award of the Tribunal in the event that discrimination is found. The respondents’ response to this assertion is oblique – the respondents provide no assurance that the organizational respondent is viable and has assets capable of responding to a remedial award that might be made.

10In dealing with the Request I have considered that there is an obvious issue of its timeliness both in relation to the events complained of and in relation to the hearing which has been scheduled. Neither party addressed the first aspect of this issue in their submissions. In this regard, I note again that Ms. St Bernard appears to be an owner of the business and was identified as the contact person for the organizational respondent. As such Ms. St. Bernard has had constructive notice of the Application since it was delivered to her in April 2014.

11The respondent does assert that the quite late addition of any of these individuals might delay the hearing. I recognize the possibility but as I have added only the contact person for the organizational respondent who will have had notice of this Application for some time that risk is quite limited.

12However as regards the other two individuals, I find that it would not be appropriate to add these individuals at this very late stage. There is no indication that either would have had any notice, constructive or otherwise, of this Application. As regards one or both of these individuals it may be that the Application is out of time pursuant to section 3491 with respect to them. In any case, it is, in my view, simply unfair in most circumstances to add parties to a proceeding as advanced as this one is.

13The applicant argues that there is no prejudice to these individuals because they are likely to be witnesses at the hearing. Assuming that this will be case this submission is entirely without merit. There is a marked and legally critical distinction between being asked to give evidence in a proceeding and being required to respond to allegations of discrimination under the Code as a party to the proceeding.

14As regards the Request to add Mr. St. Bernard who is also said to be an owner, in addition to the other considerations above he appears to have played no role in the day to day operation of this business and is barely mentioned in the narrative of the Application. It appears unlikely under any circumstances that it would be considered necessary to the fair just and expeditious adjudication of this Application that this individual be added as a party.

15For these reasons I find that it is appropriate to add Arlene St. Bernard as a personal respondent. Ms. St Bernard will deliver and file a Response to the Application no later than 35 days subsequent to this Interim Decision or confirm within 21 days that she adopts the Response of the organisational respondent.

ORDER

16Arlene St. Bernard is added to the Application as a respondent. Ms. St Bernard will deliver and file a Response to the Application no later than 35 days subsequent to this Interim Decision or confirm within 21 days that she adopts the Response of the organisational respondent.

17I am not seized.