HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Oscar Castellanos-Mendoza
Applicant
-and-
Shangri-La Hotel Toronto and Gavin Green
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Castellanos-Mendoza v. Shangri-La Hotel Toronto
WRITTEN SUBMISSIONS
Oscar Castellanos-Mendoza, Applicant
Self-represented
Shangri-La Hotel and Gavin Green, Respondents
Donna D’Andrea, Counsel
Introduction
1The applicant was employed by the respondent as a public area attendant in the Housekeeping Department. The individual respondent is the Executive Housekeeper at the respondent and the applicant’s former supervisor.
2The applicant self-identifies as a Mexican National. The applicant alleges that he was harassed by the individual respondent because he was open about his sexual orientation and because he is Latino and a newcomer to Canada. The applicant alleges that the organizational respondent did not address his complaints of harassment (contrary to their policies) and as a result, the applicant resigned from his employment.
3The respondents filed a Request for Order During Proceedings (“RFOP”) requesting a summary hearing and the removal of the individual respondent.
DECISION AND ANALYSIS
Summary Hearing Request
4The respondents’ request for a summary hearing is denied and the Application will be processed in the normal course. Rule 19.6A of the Tribunal’s Rules of Procedure provides that the Tribunal need not give reasons for a decision not to hold a summary hearing.
Removal of Individual Respondent
5Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
7On the face of the Application, it is apparent that the conduct of the individual respondent is a central issue in this case. The applicant alleges that he was subject to harassment and bullying by the individual respondent because of his sexual orientation and ethnic origin. In particular, the applicant alleges that the individual respondent called him “Dorothy” in front of other staff and then laughed about it, yelled at the applicant, took away the applicant’s shift and gave it to a new employee, and gave the applicant less desirable shifts. The applicant alleges there are no white employees in the housekeeping department and that employees in the department are constantly threatened.
8In the event the applicant’s harassment allegations are substantiated, a remedy may be sought against the individual respondent regardless of the fact that the organizational respondent is a party and able to remedy any discrimination that may be found. For this reason, it would not be appropriate to remove the individual respondent at this time.
DECISION
9The respondents’ requests for a summary hearing and the removal of the individual respondent are denied.
10The parties are directed to advise the Tribunal within seven (7) days of this Interim Decision if they agree to proceed to mediation. In the event the parties do not consent to mediation, the matter will be placed in the hearing queue.
Dated at Toronto, this 18th day of February, 2016.
“Signed by”
Jennifer Scott
Vice-chair