Godin v. 4036464 Canada Inc., 2016 HRTO 181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Helene Godin

Applicant

-and-

4036464 Canada Inc. cob as Fat Tuesdays and Dave Crawford

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: February 9, 2016

Citation: 2016 HRTO 181

Indexed as: Godin v. 4036464 Canada Inc.

WRITTEN SUBMISSIONS

Helene Godin, Applicant

Self-represented

Introduction

1This Interim Decision addresses the applicant’s request to add two respondents to her Application and to amend the remedy sought in her Application.

2By Application filed on October 16, 2015, the applicant alleged that she was discriminated against because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), when her employment was terminated. She named the personal respondent, Dave Crawford, as a respondent to the Application.

3By Request for Order During Proceedings (“RFOP”) filed January 7, 2016, the applicant sought to add two respondents to the Application: the corporate respondent who was her employer as well as the General Manager of the corporate respondent. The applicant also sought an amendment to the remedy sought in her Application.

4The applicant delivered her RFOP to the proposed respondents. However, they did not respond to it and the time for doing so has now passed.

REQUEST to add respondentS

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 (“Smyth”). 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 (“Persaud”). 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, I find it appropriate to grant the applicant’s request to add the proposed corporate respondent as a respondent. The applicant explained in her RFOP that she was employed by the corporate respondent and filed against Mr. Crawford because she was under the impression that he was an owner of the corporate respondent. I find that it is appropriate to add the proposed corporate respondent as a respondent since the allegations made, if proven by the applicant, would support a finding of discrimination by the corporate respondent as the applicant’s employer.

8I do not find it appropriate to add the corporate respondent’s General Manager as a personal respondent. The applicant stated in her RFOP that the General Manager was acting on behalf of the corporate respondent when he told her that her employment was terminated. She also stated that the decision to terminate her employment was not made by the General Manager but instead by the personal respondent. In these circumstances, I do not find it appropriate to add the General Manager as a personal respondent as he was acting within the scope of his duties. I have been provided with no information that would indicate that it may be appropriate to award a remedy specifically against the General Manager if a Code infringement is found in this case.

9For these reasons, the applicant’s request to add 4036464 Canada Inc. cob as Fat Tuesdays as a respondent is granted. Her request to add the General Manager of the corporate respondent as a personal respondent is denied.

REQuest to amend remedy

10In determining 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 prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336, and Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

11Having considered the factors set out above, I grant the applicant’s request to amend the remedy sought in his Application. This Application is at a very early stage of proceedings. No mediation has yet taken place. Therefore, I see no prejudice to granting the applicant’s request to amend the remedy sought in her Application. The Tribunal has regularly granted such requests up to the date of the hearing in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.

12This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Order

13For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to add 4036464 Canada Inc. cob as Fat Tuesdays as a respondent is granted. Her request to add the General Manager of the corporate respondent as a respondent is denied.

b. The applicant’s request to amend the remedy sought in the Application is granted. The remedy sought in the Application is amended to reflect the remedies listed in the applicant’s January 7, 2016 RFOP.

c. 4036464 Canada Inc. cob as Fat Tuesdays must file a Response to the Application no later than 35 days from the date of this Interim Decision.

d. The applicant may file a Reply to the Response filed by the corporate respondent within 14 days of receiving its Response.

14I am not seized.