Phillip v. Board of Governors of Exhibition Place, 2016 HRTO 434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Phillip

Applicant

-and-

Board of Governors of Exhibition Place

and Lester Andrews

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: April 6, 2016

Citation: 2016 HRTO 434

Indexed as: Phillip v. Board of Governors of Exhibition Place

WRITTEN SUBMISSIONS

Sharon Phillip, Applicant

Self-represented

Introduction

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A mediation was held in this matter on March 9, 2016. A hearing is yet to be scheduled.

3The applicant filed a Request for Order During Proceedings (“RFOP”) on February 29, 2016 requesting that Lester Andrews be added as a personal respondent, that the Application be amended to add the ground of reprisal based on the facts already plead and to amend her remedial request to $50,000.00 for general damages as well as loss of wages.

4The respondents did not respond to the RFOP.

adding personal respondent

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 the 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 organizational 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 and practice. 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.

7A critical incident alleged in the Application is that the proposed personal respondent made a discriminatory and derogatory comment during the course of his employment with the organizational respondent that had a negative impact on the applicant, a fellow employee. Under the circumstances, the proposed personal respondent could be found to have violated the Code if he is found to have been acting outside the scope of his employment. If so, it may be appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. For these reasons the proposed personal respondent shall be added as a party.

add the ground of reprisal

8In the circumstances, it appears that the requested amendment to add the ground of reprisal will not alter the nature of the hearing in any material way. Accordingly, the request is granted.

amend remedy

9In determining requests to amend applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request, and prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926, and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

10The Tribunal has generally granted requests to amend remedy when requested to do so. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480 and Marino v. Compuware Corporation of Canada, 2011 HRTO 1390. It has taken this approach because in most cases there is no prejudice to any other party in granting such requests. At the end of the day it is for the Tribunal to determine what the appropriate remedy is and may on its own initiative seek submissions of the parties with respect to remedies even if not sought by the applicant. Accordingly, the request to amend the remedy is granted.

order

11The Tribunal orders as follows:

a. The applicant’s request to add Lester Andrews as a respondent is granted and the style of cause amended accordingly.

b. The Registrar will deliver the Application, a Notice of Application, the Response filed by the organizational respondent and this decision to the personal respondent.

c. The personal respondent is directed to file a Response to the Application with the Tribunal in accordance with the Rules within 35 days of the date of the Notice of Application.

d. The applicant may file a Reply to the personal respondent’s Response in accordance with the Rules.

e. The applicant’s request to add the ground of reprisal is granted.

f. The applicant’s request to amend remedy to $50,000.00 for general damages as well as lost wages is granted.

12I am not seized of this case.