Andrew Savory v. Anthony Matarazzo c.o.b. as Matarazzo Construction and Ralph Matarazzo, 2017 HRTO 1062

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Savory Applicant

-and-

Anthony Matarazzo c.o.b. as Matarazzo Construction and Ralph Matarazzo Respondents

INTERIM DECISION

Adjudicator: Esi Codjoe Date: August 15, 2017 Citation: 2017 HRTO 1062 Indexed as: Savory v. Matarazzo

WRITTEN SUBMISSIONS

Andrew Savory, Applicant Megan Evans Maxwell, Counsel

1The purpose of this Interim Decision is to address the applicant’s request to add a personal respondent and to amend his Application to accurately reflect the legal status of the organizational respondent, i.e. an individual sole proprietorship rather than a corporation, and to amend the remedy sought in the Application.

2The applicant filed an Application alleging discrimination because of race, colour, ethnic origin and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant alleges that a respondent employee uttered racist epitaphs in the workplace, behaved violently towards him and terminated his employment.

REQUEST TO ADD PERSONAL RESPONDENT AND AMEND NAME OF THE RESPONDENT BUSINESS

Name of Business Respondent

3The applicant has requested the that the name of Matarazzo Construction be amended to reflect that it is an unincorporated business run by Anthony Matarazzo, carrying on business (“c.o.b.”) as Matarazzo Construction.

4The applicant submits that he has conducted a corporate search and the organizational respondent is not a corporation, rather a sole proprietorship owned by Anthony Matarazzo, operating as Matarazzo Construction. A copy of this search was submitted in support of the request. He notes the request was made promptly after he retained counsel, and became aware of the form of the business organization.

5Although the respondent filed a Response in which it identified itself as a corporation, the respondent provided no response to the request to amend the respondent’s name on the basis that it is a sole proprietorship and not a corporation.

6I accept that the respondent is in fact a sole proprietorship and not an incorporated business. Given the request has been brought at an early stage, and no issue of prejudice has been raised, I grant the request to amend. The style of cause will be amended to reflect the organizational respondent as “Anthony Matarazzo c.o.b. as Matarazzo Construction”.

Addition of Personal Respondent

7When determining a request to add a respondent, the Tribunal considers 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?

See Smyth v. Toronto Police Services (“Smyth”), 2009 HRTO 1513.

8The 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 (“Persaud”), 2008 HRTO 31, at para. 5, which focus principally on whether there is an organizational respondent who is deemed liable for the proposed personal respondent’s conduct and whether the conduct of the proposed personal respondent is a central issue in the proceedings. 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 any prejudice to the other parties.

9Applying the criteria outlined in Smyth and Persaud. It would be fair and just to grant the applicant’s request to add Ralph Matarazzo as a personal respondent. The applicant asserts that Ralph Matarazzo subjected him to a poisoned work environment, and terminated his employment for discriminatory reasons. Further, the applicant asserts that Ralph Matarazzo was employed by organizational respondent in a supervisory role, and that he was a directing mind of the business. To that end it appears that Ralph Matarazzo’s conduct is the central issue in this Application. In the event that the Tribunal makes a finding of discrimination, it is possible that Ralph Matarazzo may be found to be liable independent of the organizational respondent. Additionally, the request has been brought at a relatively early stage in the proceeding.

10Applying the factors set out above, I find that it is appropriate to add Ralph Matarazzo as a personal respondent.

OTHER REQUESTS

11The applicant also requested that certain corrections be made to the remedies sought in the Application. The first request was to clarify a sentence in the particulars, and the second was to add the following remedial requests:

I. On or about June 27, 2016, Matarazzo threw an open can of acetone across the room at the applicant, hitting him with acetone.

II. For the discrimination and harassment Savory experienced in the poisoned work environment and his termination, damages for injury to dignity, feelings and self-respect in the amount of $30,000.00;

III. For the reprisal, damages for injury to dignity, feelings and self-respect in the amount of $15,000.00;

IV. An order requiring the organizational respondent to retain an expert in Ontario human rights law who is also an expert in the area of anti-racism and racial discrimination to create a comprehensive human rights policy that is consistent with Ontario human rights law, including sections on racial discrimination and anti-racism that is consistent with the Ontario Human Rights Commission’s Policy on Racism and Racial Discrimination; the duty to provide a workplace free from harassment and discrimination; the implementation of an internal complaints process; and to provide this policy to the applicant for his approval;

V. An order requiring the organization respondent to distribute the above policy to all current employees, owners and management and all new employees upon hire and to prominently post the policy in all of its Ontario offices;

VI. An order requiring the organizational respondent to prominently post the Ontario Human Commission’s Code cards in all of its Ontario offices;

VII. An order requiring the organization respondent to retain an expert in Ontario human rights law who is also an expert in the area of anti-racism and racial discrimination to provide comprehensive human rights training, including sections on racial discrimination and anti-racism that is consistent with the Ontario Human Rights Commission’s Policy on Racism and Racial Discrimination; the employer's duty to provide a workplace free from discrimination and harassment; and a section on its human rights policy and processes to all existing Ontario employees, owners and managers (including the proposed individual respondent) and to train all new employees within 30 days of being hired, and to provide the contents of the training to the applicant for his approval.

12The additional particulars provide a slight clarification of a sentence and as such they provide the appropriate context within the paragraph within which it is situated. The requested amendments to the remedies reflect the types of remedies typically requested by applicants before the Tribunal. Further, the Tribunal ultimately decides whether to award a particular amount, and type of remedy despite a party’s specific request.

13As such it is appropriate to grant the amendment of the particulars and remedies.

ORDERS/DIRECTIONS

14For the above reasons, the Tribunal orders as follows:

a. The organizational respondent’s name is amended to Anthony Matarazzo c.o.b. as Matarazzo Construction and the style of cause is amended accordingly;

b. Ralph Matarazzo is added as a personal respondent;

c. Ralph Matarazzo is directed to file a Response to the Application (Form 2) no later than 21 days from the date of the Interim Decision or confirm whether he adopts the Response filed by the organizational respondent. The applicant may file an amended Reply to reply to any new issues raised in any Response filed by Ralph Matarazzo within 7 days of receiving the Response from Ralph Matarazzo;

d. The particulars and remedies are amended as set out in para. 10 above.

15I am not seized of this matter.