HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Pamela King
Applicant
-and-
TMF Foods Ltd. and Jeff Porter
Respondents
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: King v. TMF Foods Ltd.
WRITTEN SUBMISSIONS
Pamela King, Applicant
John Fraser, Counsel
TMF Foods Ltd., Respondent
Robert Whitmore, Counsel
Introduction
1The purpose of this Interim Decision is to deal with the applicant’s request to add two individuals as respondents to the Application.
BACKGROUND
2The applicant is employed as a Labourer by TMF Foods Ltd. On January 18, 2016, she filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which named TMF Foods Ltd. as a respondent, and alleged that it had discriminated against her with respect to the employment because of her disability and sex, and subjected her to sexual harassment and advances. She specifically alleged, among other things, that Jeff Porter, who was a Lead Hand, and D.S., who was a co-worker, subjected her to sexual harassment and advances. She did not name Mr. Porter and D.S. as respondents to the Application. She was self-represented at that time.
3On February 23, 2016, TMF Foods Ltd. filed a Response, which denied the allegations of discrimination and sexual harassment and advances.
4In the spring of 2016, the applicant retained legal counsel. On June 29, 2016, she filed a Request for an Order During Proceedings (“RFOP”), which requested that Mr. Porter and D.S. be added as respondents to the Application. She delivered the RFOP to Mr. Porter and D.S. c/o TMF Foods Ltd.
5On July 5, 2016, TMF Foods Ltd. filed a Response to the RFOP, which opposed adding Mr. Porter and D.S. as respondents to the Application because there was no reason why she could not have named them as respondents at the time she filed her Application. TMF Foods Ltd. also stated that D.S. is no longer employed by it.
6Neither Mr. Porter nor D.S. filed a Response to the RFOP. It does not appear that the applicant re-delivered the RFOP to D.S. at another address where he would have received it.
ANALYSIS
7Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add a party. In 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.
8The request to add Mr. Porter as a respondent to the Application is granted for the following reasons. First, there are allegations of sexual harassment and advances against him in the Application that could, if true, lead to a finding that the Code was infringed. Second, although there is an organization respondent (TMF Foods Ltd.) that could remedy a finding that the Code was infringed, there are specific allegations of sexual harassment and advances against him in the Application. Third, it is fair to add him as a respondent because the hearing of the merits has not been scheduled yet, the applicant was self-represented at the time she filed her Application, there is minimal prejudice to TMF Foods Ltd. or him in adding him as a respondent at this stage, and there may be a need for a specific remedial order against him if the allegations against him are upheld.
9Within seven days of the date of this Interim Decision, TMF Foods Ltd. shall notify the Tribunal’s Registrar in writing, with a copy to the applicant, whether its filed Response is also on behalf of Mr. Porter. If the filed Response is not also on behalf of Mr. Porter, within 35 days of the date of this Interim Decision, he shall file his own Response to the Application.
10The request to add D.S. as a respondent to the Application cannot be dealt with at this time because it appears that the RFOP has not been delivered to him.
ORDER
11The Tribunal makes the following orders and directions:
Jeff Porter is added as a respondent to the Application. The title of proceeding is amended accordingly.
Within seven days of the date of this Interim Decision, TMF Foods Ltd. shall notify the Tribunal’s Registrar in writing, with a copy to the applicant, whether its filed Response is also on behalf of Mr. Porter.
If TMF Foods Ltd.’s filed Response is not also on behalf of Mr. Porter, within 35 days of the date of this Interim Decision, he shall file his own Response to the Application.
The request to add D.S. as a respondent to the Application cannot be dealt with at this time.
12I am not seized of this matter.
Dated at Toronto, this 2nd day of August, 2016.
“Signed By”
Ken Bhattacharjee
Vice-chair