Ben Saad v. 1544982 Ontario Inc., 2016 HRTO 976

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Naji Ben Saad

Applicant

-and-

1544982 Ontario Inc., Essex Weld Solutions Ltd., EWS Inc. and Windsor Management

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 25, 2016 Citation: 2016 HRTO 976 Indexed as: Ben Saad v. 1544982 Ontario Inc.

WRITTEN SUBMISSIONS

Naji Ben Saad, Applicant

Zahra Binbrek, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to add three corporate respondents to his Application.

2In his Application, the applicant alleged that he was discriminated against because of place of origin, citizenship and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is a temporary foreign worker from Tunisia. He alleged that his employer discriminated against him with respect to his pay. He also alleged that his employer failed to accommodate his disability and terminated his employment for discriminatory reasons.

3By Request for Order During Proceedings (“RFOP”) filed May 30, 2016, the applicant sought to add the following three corporate respondents to his Application: Essex Weld Solutions Ltd., EWS Inc., and Windsor Management. According to the applicant, these three corporate respondents are related to the respondent 1544982 Ontario Inc. The applicant’s initial corporate search confirmed that 1544982 Ontario Inc. was a proper respondent. A subsequent search indicated that Essex Weld Solutions Ltd. and EWS Inc. all have the same directors and the same business mailing address as 1544982 Ontario Inc. In addition, a WSIB form filed by the respondent lists the company as Essex Weld Solutions Ltd. The applicant’s letter of employment is from “Windsor Management, a division of Essex Weld Solutions” and the same person appears to be the Human Resources Manager for the respondent, Windsor Management, and Essex Weld Solutions Ltd.

4The respondent did not respond to the RFOP and the time for doing so has passed.

Findings

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?

6Having considered the factors set out above, I grant the applicant’s request to amend the Application. Based on the materials filed by the applicant, and in the absence of any response to the applicant’s RFOP from the respondent, I find that there are allegations made in the Application that could support a finding that the proposed respondents breached the Code. It appears that the three corporations sought to be added as respondents to the Application are interconnected with the respondent.

7The Tribunal has held that, in the appropriate case, related companies may be treated as one for the purpose of determining liability for obligations owed to employees under the Code. See Barter v. Bata, 2010 HRTO 325 at paras. 21 and 22 and Girard v. Mary-Am Corporation, 2016 HRTO 688 at paras. 12-20.

8The applicant filed his RFOP relatively late in this proceeding, as a hearing has already been scheduled for September 6, 2016. However, the applicant did advise the respondent’s representative of the issue prior to the mediation in February 2016. In addition, the respondent’s director who is listed on the Application is also the director of at least two of the three corporate respondents referred to above. In the absence of a response to the RFOP providing any information suggesting that the three entities sought to be added are unrelated to the respondent, I find that it is fair to add the three entities as respondents in the circumstances of this case.

Order

9For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to add Essex Weld Solutions Ltd., EWS Inc. and Windsor Management as respondents is granted.

b. If any of these three respondents wishes to file a separate Response to the Application, they must do so no later than 14 days from the date of this Interim Decision.

c. The deadline for any pre-hearing disclosure required under Rules 16.2 and 17 of the Rules of Procedure by these three respondents is August 19, 2016.

10I am not seized.