Cameron v. CIA Inspection Inc., 2016 HRTO 1668

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jacqueline Cameron

Applicant

-and-

CIA Inspection Inc. and Rick Clark

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: December 22, 2016

Citation: 2016 HRTO 1668

Indexed as: Cameron v. CIA Inspection Inc.

WRITTEN SUBMISSIONS

Jacqueline Cameron, Applicant

Robert Cameron, Representative

CIA Inspection Inc. and Rick Clark, Respondents

John Wigle, Counsel

1This Interim Decision addresses the applicant’s request to add a personal respondent to the Application.

2By Application filed on November 3, 2015, the applicant alleged that the corporate respondent discriminated against her because of disability and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that the corporate respondent discriminated against her by failing to pay her certain bonus monies, failing to accommodate her disability and terminating her employment.

3The hearing of the Application is scheduled for June 5-6, 2017.

Request to add personal respondent

4By Request for Order During Proceedings (“Request”) filed on October 31, 2016 the applicant requested permission to add Rick Clark as a personal respondent to her Application. Mr. Clark is the president and owner of the corporate respondent. The respondents opposed the request on the basis that it was made more than a year after the last incident of alleged discrimination set out in the Application. As well, the respondents submit that the applicant’s request does not meet the test for adding personal respondents contained in the Tribunal’s case law.

finding

5The 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?

6When 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. These factors focus mainly on whether the corporate respondent is responsible for the conduct of the proposed personal respondent, and whether there is a compelling legal reason for an individual to be named as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his or her conduct is a central issue in the case and extends beyond implementing organizational policies or practices. 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 Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 and Persaud at para. 5.

7Having considered the factors set out in Smyth and Persaud, I find it appropriate to grant the applicant’s request to add Mr. Clark as a personal respondent for the following reasons. The applicant asserts that Mr. Clark is the president and owner of the corporate respondent 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 Mr. Clark terminated the applicant’s employment. Finally, I have considered that the applicant asserts a concern (albeit without proof) that the corporate respondent may be at risk of bankruptcy. As such, there may be a concern with the corporate respondent’s ability to comply with a monetary award if the Tribunal were to find discrimination in this case.

8In dealing with the Request I have considered its timing both in relation to the events complained of and in relation to the hearing which has been scheduled. I note that Mr. Clark appears to be the president and owner of the corporate respondent and he was identified as the contact person for the corporate respondent. As such, he has had constructive notice of the Application since it was delivered to him in November, 2015. I do not agree with the respondents that the late addition of the personal respondent would add complexity and unnecessary duplication to the proceeding. The hearing is not scheduled until June 2017 and therefore no disclosure has yet occurred in this case.

Order

9For the reasons set out above, Rick Clark is added as a personal respondent to this Application and the style of cause shall be amended accordingly. If Mr. Clark wishes to file his own Response separate from the corporate respondent’s Response, he must do so within 35 days of this Interim Decision. If the applicant wishes to file a Reply to any Response filed by Mr. Clark, she must do so within 14 days of receiving Mr. Clark’s Response.

10I am not seized.