Human Rights Tribunal of Ontario
B E T W E E N:
Krysta Hewitt Applicant
-and-
2435040 Ontario Limited c.o.b. Homestyle on Manning, Kate Kavanaugh and Bryan Kavanaugh Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard Date: August 8, 2017 Citation: 2017 HRTO 1016 Indexed as: Hewitt v. 2435040 Ontario Limited
WRITTEN SUBMISSIONS
Krysta Hewitt, Applicant Self-represented
2435040 Ontario Limited c.o.b. Homestyle on Manning, Kate Kavanaugh and Bryan Kavanaugh, Respondents Leonard Kavanaugh, Counsel
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of sex.
2On April 11, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”) to amend the Application by adding a request for compensation for lost maternity benefits to an amount of $13,728.00. The applicant explained that she erroneously omitted the amount in the requested remedies in her Application.
3On April 21, 2017, the respondents wrote to the Tribunal to request that the Application be dismissed because the two personal respondents were never the applicant’s employer. In the alternative, the respondents request that the applicant ask for an amendment to the Application to add the corporate respondent 2435040 Ontario Limited c.o.b. Homestyle on Manning (“2435040”).
4On April 25, 2017, the applicant filed a RFOP requesting to add 2435040 as a respondent and to add further remedies as follows: $15,000 for injury to her dignity, feelings and self-respect, and that her former employer be educated and receive training on human rights issues. The applicant explains that she did not know the name of 2435040 when she filed her Application as her pay stub stated Homestyle Delicatessen Ltd. and her Record of Employment stated Homestyle on Manning.
5The respondents filed their Response on May 24, 2017, opposing the requests to amend the Application and the request to add 2435040 as a respondent. The respondents also filed a RFOP requesting an order to dismiss the Application or in the alternative an order directing the applicant to remove the personal respondents Kate and Bryan Kavanaugh. The respondents argue that the personal respondents were never the applicant’s employers.
6On June 16, 2017, the applicant filed her Reply opposing the request to remove the personal respondents because they were personally involved in the discrimination.
7This Interim Decision addresses the following:
a. Requests to amend the Application to add remedies;
b. Request to add personal a corporate respondent and to remove the personal respondents.
Request to amend remedies
8Rule 1.7(c) of the Tribunal’s Rules of Procedure states “in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended”.
9In 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.
10Having considered the factors set out above, I grant the applicant’s requests to amend the remedy sought in his Application. The applicant raised her requests before the respondents had filed their Response and no prejudice exists such that it would be unfair to allow the amendments. The Tribunal has regularly granted requests to amend remedies up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.
Request to add a corporate respondent and to remove the personal respondents
Adding Corporate Respondent
11The applicant seeks to add 2435040 as a corporate respondent to this Application. The applicant submits that at the time the Application was filed she did not know the accurate name of the corporate respondent. She argues that 2435040 was her employer during the material time and her allegations are made in the context of employment.
12The respondents oppose the request and ask that the Application be dismissed as the personal respondents were never the applicant’s employer.
13Rule 1.7(b) of the Tribunal’s Rules of Procedure (“Rules”) states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add a party”. The Tribunal’s jurisprudence has articulated the following factors with respect to adding a respondent:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
See Smyth v. Toronto Police Services, 2009 HRTO 1513.
14Based on the foregoing, it appears that it would be fair to add the proposed corporate respondent. The applicant alleges that her employment with the corporate respondent was terminated because of her sex, more specifically her pregnancy. The corporate respondent 2435040 was at the time her employer. I am satisfied that there are facts alleged by the applicant, which if proven and subject to the defence by the proposed corporate respondent, could lead to a finding that the corporate respondent is responsible for the alleged violation of the applicant’s rights. I find that no prejudice exists such that it would be unfair to require the corporate respondent to participate in the proceeding as a respondent. As such, the applicant’s request to add the corporate respondent is granted.
Removing Personal Respondents
15In exercising this power in relation to the potential removal of personal respondents, the Tribunal has stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 (“Sigrist”), as follows:
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.
16There are no facts in the respondent’s RFOP to persuade me that the personal respondents should be removed. Counsel for 2435040 has not stated that it accepts deemed or vicarious liability for the conduct of the personal respondents or addressed whether or not it has the ability to respond to or remedy any potential Code infringement.
17It is premature to remove the personal respondents as parties given the lack of relevant information provided with respect to the appropriateness of removing him. This is not a final decision with respect to whether the personal respondents should be removed as parties, which may be addressed as a preliminary issue with the adjudicator assigned to hear the case at the outset of the hearing.
ORDER
18Accordingly, the Tribunal orders as follows:
a. The Application is amended to add the following remedies:
compensation for lost maternity benefits to an amount of $13,728.00;
$15,000 for injury to the applicant’s dignity, feelings and self-respect;
That the respondents be educated and receive training on human rights issues.
b. 2435040 Ontario Limited c.o.b. Homestyle on Manning is added as a respondent and the style of cause is amended accordingly.
c. The request to remove the personal respondents is premature and is denied without prejudice to the personal respondents to renew the request for removal before the hearing adjudicator.
19The parties have agreed to proceed to mediation. The Registrar will schedule this matter for a half-day mediation.
20I am not seized of this matter.
Dated at Toronto, this 8th day of August, 2017.
“Signed by”
Josée Bouchard
Vice-chair