Carrol v. Laura Canada, 2016 HRTO 187

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diana Carrol

Applicant

-and-

Laura Canada and Donald Desabrais

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: February 10, 2016

Citation: 2016 HRTO 187

Indexed as: Carrol v. Laura Canada

WRITTEN SUBMISSIONS

Laura Carrol, Applicant

Self-represented

1This Interim Decision addresses the applicant’s request to add respondents to this Application. It also directs the KPMG Inc., the Monitor of the corporate respondent, to update the Tribunal on the status of the stay of proceedings against the corporate respondent ordered by the court.

2By Application filed on May 21,2015, the applicant alleged that the respondents discriminated against her because of her sex and reprised against her 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 personal respondents to her Application and her request to amend the remedy sought in her Application.

3The Application centers on an incident that occurred sometime in the spring or summer of 2014 where her female former manager allegedly showed her a video that she considered lewd and distasteful and played music with lyrics that the applicant also considered lewd and distasteful. The manager ended up leaving the company. In her Application, the applicant makes various claims regarding what she referred to as her “constructive dismissal”. It appears that she is alleging that the respondents reprised against her for complaining about her manager’s conduct. She also appears to allege that the respondents discriminated against her by requiring her to work with her former manager when she was re-hired by the company.

Request to add personal respondents

4The applicant filed a Request for Order During Proceedings (“RFOP”) in which she sought to add 6 additional individuals as personal respondents to this Application. The six individuals are: the CEO/President of the corporate respondent, the Vice President of Sales, three individuals who appear to be managers or regional managers, and the former manager referred to above.

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”) 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.

7Applying the considerations set out in Smyth and Persaud, I find that it would not be appropriate to add the six personal respondents that the applicant has sought to add to this Application. There are no allegations whatsoever made in the Application that could support a finding that the CEO/President of the corporate respondent violated the Code. Also, there is no basis to conclude that any of the actions taken by the managers and/or regional managers were undertaken in any capacity other than in the course of their employment duties for the corporate respondent. Therefore, in my view, there would be no basis for this Tribunal to award a remedy against these individuals personally. Finally, the one allegation in the Application against the applicant’s former manager relates to an incident that occurred more than a year before the applicant filed her RFOP. In my view, it is not appropriate to add the former manager as a respondent at this stage. Section 34(1) of the Code sets out a one year time limit for the filing of Applications under the Code. While this section does not specifically apply to requests to add respondents, it sets out the expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to allegations against them. Having regard to all the circumstances of this case, I do not find it appropriate to add the applicant’s former manager as a respondent to the Application at this stage.

8For these reasons, the applicant’s request to add respondents to her Application is denied.

Update on Stay of proceedings

9By correspondence dated, October 21, 2015, KPMG advised the Tribunal that the Superior Court of Quebec had ordered a temporary stay of proceedings against the corporate respondent which would apply to this case. It appears that the initial stay was extended to November 30, 2015. The Tribunal directs that KPMG advise the Tribunal in writing of the status of the stay of proceedings against the corporate respondent.

ORDER

10For the foregoing reasons, the Tribunal makes the following order:

a. The applicant’s request to add respondents to her Application is denied.

b. No later than March 1, 2016, KPMG must advise the Tribunal of the status of the stay of proceedings against the corporate respondent. It must copy the applicant on its correspondence.