Brittain v. 2374855 Ontario Inc. o/a Minden 50s Diner, 2016 HRTO 1300

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Brittain

Applicant

-and-

2374855 Ontario Inc. o/a Minden 50s Diner and Lisa Hope

Respondents

INTERIM DECISION

Adjudicator: Bruce Best

Date: October 6, 2016

Citation: 2016 HRTO 1300

Indexed as: Brittain v. 2374855 Ontario Inc. o/a Minden 50s Diner

WRITTEN SUBMISSIONS

Julie Brittain, Applicant

Francesca Allodi-Ross, Counsel

2374855 Ontario Inc. o/a Minden 50s Diner, Respondent

No one appearing

Lisa Hope, Proposed Respondent

No one appearing

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s request to add an individual respondent.

2This Application was delivered to the respondent 2374855 Ontario Inc. (the “corporate respondent”) on May 31, 2016. The corporate respondent has not filed a Response.

Request to add individual respondent

3On August 4, 2016, the applicant filed a Request to add Lisa Hope as an individual respondent (the “proposed respondent”). The applicant had also delivered a copy of the Request and a copy of the Application to the proposed respondent. The corporate and proposed respondents had until August 19, 2016 to file a Response to the Request. No response was filed by either.

4The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513 (“Smyth”) at para 12 that 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?

Do the allegations support a finding that the proposed respondent violated the Code?

5In the present case, the allegations against the proposed respondent, which are unproven, are that she discriminated against the applicant, and subject the applicant to harassment in the workplace because of her disability, contrary to ss.5(1) and (2) of the Code, which read:

Employment

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

Harassment in employment

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

6Harassment is defined in s.10(1) of the Code as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. It is not clear that the alleged actions of the proposed respondent, even if proven, would be found to amount to harassment. However, in the absence of any response from either the corporate or proposed respondent, the allegations of discrimination and harassment are sufficient that a finding could be made that the proposed respondent breached the Code.

Is there a compelling reason to add the proposed respondent?

7At the second part of the test, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), 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 of the individual respondent, and whether that individual’s conduct is a central issue in the proceedings.

8In this case, there is a corporate respondent also named, though to date it has not participated in any way in these proceedings. Under s.46.3(1) of the Code, the actions of an employee of a corporation done in the course of their employment are generally deemed to be an act of the corporation. This deeming provision, however, specifically does not apply to harassment, including harassment under s.5(2) of the Code. As also noted above, the applicant is alleging that she was subject to both discrimination and harassment because of her disability by the proposed respondent.

9By failing to respond, it is unknown what the corporate respondent’s position is on its deemed liability. The corporate respondent’s failure to participate would not necessarily insulate it from liability, and it may nonetheless be deemed liable under s.46.3 should the Tribunal ultimately find that actions of the proposed respondent were in the course of her employment and were discriminatory and contrary to s.5(1) of the Code. However, the corporate respondent cannot be deemed liable for harassment under s.5(2).

10In the circumstances, given the allegations of harassment and the failure of the corporate respondent to participate in the proceedings, I find that it is appropriate to add the proposed respondent as a party even though there is also a corporate respondent who may also be liable.

Would it be fair to add the proposed respondent?

11At 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, and prejudice to the other parties.

12As noted in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 (“Sigrist”) at para 42, “the unnecessary naming of personal respondents is a practice to be discouraged”. The Tribunal should not encourage the naming of individual respondents at the application stage where there is an organization who appears to be able to accept liability and provide an appropriate remedy should liability be found.

13In the present case, the request to add the proposed respondent was not made until after it appeared that the corporate respondent was not intending to participate in the proceedings at all. The impact on the hearing process will be minimal. The individual conduct of the proposed respondent is a central issue in the Application, and she would likely be a necessary witness whether or not she is a party. For the same reasons, I cannot see how her being a respondent would prejudice any of the other parties.

Decision

14For the above reasons, I find that it is appropriate to add the proposed individual respondent as a party to the proceedings. The applicant’s Request for Order is granted and the style of cause is amended accordingly.

15The individual respondent shall be provided with a copy of the Application, along with a copy of this Interim Decision, and is directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of the Application is sent.

16I am not seized.