B.M. as represented by her Litigation Guardian, C.M. v. Jeff & Becky Stables, 2016 HRTO 1252

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

B.M as represented by her Litigation Guardian, C.M.

Applicant

-and-

Jeff & Becky Stables, Jeff Williamson and Eric Billings

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: September 26, 2016

Citation: 2016 HRTO 1252

Indexed As: B.M. as represented by her Litigation Guardian, C.M. v. Jeff & Becky Stables

WRITTEN SUBMISSIONS

B.M. as represented by her Litigation Guardian, C.M., Applicant

Roger Love, Counsel

Jeff & Becky Stables and Eric Billings, Respondents

Hilary Page, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex and sexual solicitation or advances.

2The applicant alleges Rick Forgie sexually harassed her when she was working at Eric Billings’ stables. The applicant’s mother asserts she advised Mr. Billings of what happened, and he told her the applicant was welcome to return to work and he would let Mr. Forgie go. Several weeks went by during which Mr. Billings assured the applicant’s mother the applicant could return although he made repeated excuses with respect to an exact date. The applicant’s mother subsequently discovered Mr. Forgie was back at work, which made the applicant feel Mr. Billings did not believe her. The applicant further alleges it was Jeff Williamson who hired Mr. Forgie back.

3This Interim Decision is issued in response to the applicant’s Request for an Order During Proceedings, dated July 21, 2016 (“Request”) requesting an order:

a. Adding Rick Forgie and Jeffery Williamson as personal respondents;

b. that Jeffery Williamson provide the current or last known addresses for Eric Billings and Rick Forgie;

c. that Jeffery Williamson and/or Eric Billings provide documentation to confirm whether Jeff & Becky Stables was run as a corporation, sole proprietorship, business or other entity;

d. that the personal and organizational respondents provide their arguably relevant documents; and

e. that the applicant is permitted to amend her Application to increase the monetary remedy to $14,000 and to include a claim of reprisal.

Addition of personal respondents

Mr. Williamson

4The applicant seeks to add Mr. Williamson, who is named as the contact person for the organizational respondent, as a personal respondent. She served him with the Request and he filed a Form 11 Response to the Request.

5The applicant submits she was employed by the organizational respondent, but discovered after retaining counsel there was no business entity with this name, and therefore submits Mr. Williamson, one of the business’s operators, should answer the allegations in his personal capacity, and that he is vicariously liable for Mr. Forgie’s and Mr. Billing’s actions.

6The applicant submits Mr. Williamson failed to investigate the applicant’s allegations. In addition, the applicant submits that Mr. Billings claims it was Mr. Williamson who allowed Mr. Forgie to return to work despite the applicant’s allegations against Mr. Forgie. In addition, when the applicant’s mother attempted to facilitate the applicant’s return to work, this was thwarted by the fact that Mr. Forgie had already been permitted to return.

7Mr. Williamson asserts he has no connection to the organizational respondent, and had no employment relationship with the applicant, Mr. Forgie or Mr. Billings. He met Mr. Forgie briefly during his employment with Mr. Billings.

8Mr. Williamson asserts he was a patron of Mr. Billings’ services, not his employer. He assisted Mr. Billings to find a barn to rent, agreed to compensate Mr. Billings to take care of his horses and had no day to day dealings with the horses or their care. He asserts he had no control over who Mr. Billings employed, nor did he know Mr. Billings had hung a sign that said “Jeff & Becky Stables”.

9Mr. Williamson asserts he had no contemporaneous knowledge of the situation alleged in the Application. He asserts he was not named as a respondent because he was unknown to the applicant.

10He asserts he would be prejudiced by being added as a personal respondent, which would require him to expend resources to respond to a matter in which he had no involvement and could not offer any information.

Rick Forgie

11The applicant requests that Mr. Forgie be added as a personal respondent, alleging he violated the Code by making a sexual advance toward the applicant at work; and that he poisoned the applicant’s work environment, further harassed the applicant by adding her as a friend on Facebook, followed and leered at the applicant at work and attempted to lure the applicant to his home.

analysis and decision – add personal respondents

12The 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 para. 12. In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

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?

13When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 (“Persaud”) when deciding whether to add or remove a personal respondent when there is an organizational respondent to the Application. These factors focus mainly on whether the corporate respondent is responsible for the conduct of the personal respondent, and whether there is a compelling legal reason for an individual to be retained as a personal respondent. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Persaud at para. 5.

14With respect to adding Mr. Williamson, based on the test set out in Smyth and Persaud, above, although Mr. Williamson asserts he was not involved in the incident at the time, this is not clear to the Tribunal at this stage, given the applicant’s allegations. As such, it is possible that there are facts that could support a finding that Mr. Williamson violated the Code. In addition, given the uncertainty with respect to the business organization, the Tribunal does not have sufficient information to be satisfied that there is a corporate respondent that will accept liability for Mr. Williamson’s actions or inactions, and as such, it is appropriate that he be added as a personal respondent. I note that when the applicant filed the Application, it appeared that Mr. Williamson was named and in fact he filed a Form 2 Response.

15With respect to adding Mr. Forgie, he has not been served with the Request and therefore the Tribunal cannot add him as a personal respondent.

Current or Last Known Addresses

16The applicant requests Mr. Williamson provide current or last known addresses for Eric Billings and Rick Forgie.

17Mr. Billings filed a Response, but the applicant advised in an email dated June 17, 2016 that the contact information is no longer valid.

18Mr. Williamson submits he has no information as to the whereabouts of either of these individuals.

19Mr. Williamson shall provide to the applicant the last known addresses he has for Mr. Billings and Mr. Forgie.

Documentation evidencing Structure of Business

20The applicant requests that Mr. Williamson and/or Mr. Forgie provide documents to confirm what type of business entity Jeff & Becky Stables is or was.

21Mr. Williamson submits he has no relationship to such a business and did not know that Mr. Billings had hung the “Jeff & Becky Stables” sign.

22Mr. Williamson shall provide relevant documents respecting the type of business the stable was, if any, including whether or not the stable was operating as a non-registered business, as part of his arguably relevant documents.

Production of Arguably Relevant Documents

23This matter was scheduled for a hearing on August 4, 2016, and the March 29, 2016 Notice of Hearing set out the deadlines for delivering and filing the parties’ arguably relevant documents and the documents to be relied upon at the hearing. The arguably relevant documents were to be delivered by the respondents to the applicant by no later than April 19, 2016.

24By no later than October 7, 2016, the respondents, Mr. Williamson, Mr. Billings and Jeff & Becky Stables shall deliver to the applicant their arguably relevant documents, and file with the Tribunal a Form 23 Statement of Delivery confirming they have done so.

Amendments to Application

25The applicant requests an order permitting her to add reprisal and to increase the monetary remedy to $14,000.

26Mr. Williamson opposes the amendment to increase the monetary award claimed, but does not take a position with respect to the request to add the ground of reprisal. Mr. Williamson opposes the applicant’s request to increase the monetary award claimed asserting the case law does not support a monetary award of that magnitude.

27Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just an expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended.

28In deciding requests to amend Applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the potential prejudice, if any, to the respondents. See, for example, Dube v. Canadian Career College, 2008 HRTO 336; N.T. by his next friend D.B. v. Durham District School Board, 2014 HRTO 7; and Edgar Briggs v. Lost and Found and Brandon Briggs v. Lost and Found, 2016 HRTO 245.

29I am satisfied that the applicant should be permitted to amend the Application, as described in her Request. The applicant recently retained legal counsel to assist her in this matter, and this has precipitated the Request. Although the Tribunal had scheduled a hearing date, it was adjourned, and the respondents will have time to respond to the amendments which will alleviate any potential prejudice to them.

30In permitting the amendments, the Tribunal takes no position with respect to the appropriateness of the monetary award or the merits of the reprisal claim.

order and directions

31The Tribunal orders:

a. Mr. Williamson is added as a personal respondent;

b. The applicant is permitted to amend her Application to add the ground of reprisal and to increase the monetary award claimed to $14,000;

c. By no later than October 7, 2016, the applicant shall deliver to the respondents and to the Tribunal her amended Application and shall file with the Tribunal a Form 23 Statement of Delivery evidencing delivery of the amended Application;

d. By no later than October 28, 2016, the respondents shall deliver to the other parties and to the Tribunal any amended Response and shall file with the Tribunal a Form 23 Statement of Delivery evidencing delivery of the amended Response;

e. By no later than November 14, 2016, the applicant shall deliver to the other parties and to the Tribunal any amended Reply and shall with the Tribunal a Form 23 Statement of Delivery evidencing delivery of the amended Response;

f. By no later than November 28, 2016, the parties shall deliver to each other their arguably relevant documents if they have no already done so, and shall file with the Tribunal a Form 23 Statement of Delivery evidencing delivery of same;

g. The respondent, Mr. Williamson, shall include in the arguably relevant documents he delivers a copy of any documents respecting the type of business the stable was, if any, including whether or not the stable was operating as a non-registered business;

h. By no later than December 14, 2016, the parties shall deliver to each other and to the Tribunal their documents to be relied upon at the hearing and shall file with the Tribunal a Form 23 Statement of Delivery evidencing delivery.

i. By no later than December 14, 2016, the parties shall provide to the Tribunal dates in February and March, 2017 on which they are available to attend a one day hearing in this matter.