Safari v. The TechKnow Space Inc., 2017 HRTO 1055

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ali Safari

Applicant

-and-

The TechKnow Space Inc./002091622 Ontario Inc.

c.o.b. The TechKnow Space and Ashok Mansukhani

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: August 15, 2017

Citation: 2017 HRTO 1055

Indexed as: Safari v. The TechKnow Space Inc.

WRITTEN SUBMISSIONS

Ali Safari, Applicant

Roger Love, Counsel

The TechKnow Space Inc. and Ashok Mansukhani, Respondents

Ashok Mansukhani, Representative

Introduction

1This Interim Decision addresses the applicant’s Request to Amend his Application to add particulars about the allegations made in the Application; to add a personal respondent; and to add reprisal as a ground of alleged breaches of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Request was filed on July 31, 2017.

2In his Application, the applicant alleged that the respondent discriminated against him on the basis of his family status contrary to the Code.

3The corporate respondent filed a Response in which it denied the allegations made in the Application.

4The hearing of this matter is scheduled for September 8, 2017, in Toronto.

5The applicant indicates that the reason he is seeking to amend the Application is that after speaking to his legal counsel he understood that the Application needed to be amended to provide additional particulars and clarify incidents that were described in the Application.

6He seeks to add Ashok Mansukhani as he is personally responsible for the alleged harassment.

7The respondent did not file a response to this Request.

Request to add particulars and ground of reprisal

Analysis

8In 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, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

9Having considered these factors, I grant the applicant’s request to amend the Application as set out in Schedule B that was attached to the Request and to add the ground of reprisal.

10The amendments only add clarifications and details of discussions that were previously alleged in the Application. I do not find that allowing the amendments will significantly expand the scope of the hearing. The proposed amendment only provides additional facts to incidents that were already alleged. The applicant is not seeking to add any allegations of new Code breaches.

11Although the applicant did not check “Reprisal” as a ground on the Application, the narrative in the Application details incidents that would be characterized as reprisal. As such, the applicant is not seeking to add any new allegations of new Code breaches.

Adding personal respondent

12The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(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?

13The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

14In the Application as originally filed, the applicant alleges that Mr. Mansukhani made several comments which he alleges amount to harassment on the basis of his family status. Mr. Mansukhani is the president of the organizational respondent. These alleged facts, if proven, could support a finding that Mr. Mansukhani harassed the applicant, contrary to section 5(2) of the Code. Pursuant to section 46.3(1), the organizational respondent is not vicariously liable for acts of harassment committed by its employees and may not be responsible for any remedy if these allegations are proven. Mr. Mansukhani’s conduct is a central issue in the Application. In the Response, Mr. Mansukhani is named as the contact and first person is used in the narrative where “I” is Mr. Mansukhani. I find that there is no apparent prejudice to any party in adding the proposed respondent. In the circumstances, I find that it would be appropriate to add Mr. Mansukhani as a party to the proceedings. The applicant’s Request for Order is granted and the style of cause is amended accordingly.

respondents’ disclosure obligations

15The Notice of Hearing dated May 1, 2017 set out the parties’ disclosure obligations. Specifically, the Tribunal notified the parties that they were obliged to take the following steps by no later than July 25, 2017:

a. Prepare a list of all the documents you intend to rely on at the hearing. These are the documents that are relevant to the issues to be determined in this application that you have chosen to put before the Tribunal.

b. Prepare copies of each of the documents you have chosen to put before the Tribunal for the Tribunal.

c. Prepare witness statements describing what the witnesses will say when they testify at the Tribunal hearing. A witness statement must be prepared for each witness including the applicant and individual respondent. The witness statements should be detailed and set out, in full, the testimony that the witness will give.

d. Deliver to the respondent the witness statements, the list of documents you intend to rely on and a copy of each of these documents

e. Deliver to the Tribunal the witness statements, the list of documents you intend to rely on and a copy of each of these documents, along with the completed Statement of Delivery (Form 23).

16It does not appear that the respondents have complied with these Rule 16 and 17 obligations.

17There are serious consequences for these respondents if they do not comply with their obligations under the Tribunal’s Rules, or fail to attend the hearing.

Directions to the Respondents

18The respondents, shall comply with the document requirements set out under Step Two of the Notice of Hearing by no later than August 21, 2017.

19Should the respondent fail to comply with this Direction, it may be unable to introduce documents and call witnesses at the hearing.

20The HRTO’s Rules of Procedure are available at http://www.sjto.gov.on.ca/hrto/ under “Law, Rules and Policies”. The parties may also benefit from reviewing the Tribunal’s “Guide to Preparing for a Hearing before the HRTO”, available at http://www.sjto.gov.on.ca/hrto/ under “Guides and Forms”.

ORDER

21For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application is granted. The original narrative set out in section 8 to the Application will be replaced by Schedule B filed with the applicant’s July 31, 2017 Request.

b. The applicant’s request to amend the Application to add the ground of reprisal is granted.

c. The applicant’s Request for Order to add Ashok Mansukhani as a respondent is granted and the style of cause is amended accordingly.

d. The respondents, must comply with the document requirements set out under Step Two of the Notice of Hearing by no later than August 21, 2017.