HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrienne Hale

Applicant

-and-

ABcann Medicinals Inc., ABcann Distributors Inc., Ken Clement, Richard Brown, and Jenny Guan

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 27, 2017 Citation: 2017 HRTO 1275 Indexed as: Hale v. ABcann Medicinals Inc.

APPEARANCES

Adrienne Hale, Applicant Judy Kondrat, Counsel

ABcann Medicinals Inc., ABcann Distributors Inc., Ken Clement, Richard Brown, and Jenny Guan, Respondents Andrew LaCroix, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of sex, age and reprisal.

2On August 14, 2017, the applicant filed a Request for an Order During Proceedings seeking to add ABcann Medicinals Inc. and ABcann Distributors Inc. as organizational respondents and to amend the remedies she requests. Neither the respondents nor the proposed respondents filed a Response to a Request for an Order and the time for doing so has passed. On September 11, 2017, counsel for the respondents sent an e-mail message to the Tribunal in which, amongst other things, stated that ABcann Medicinals Inc. consents to being added as a respondent, but that ABcann Distributors Inc. is an inactive company without assets or income and is therefore not a proper party to the Application.

Analysis and Decision

3The 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?

The 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 (“Persaud”), 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, supra, 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.

4In this case, the applicant alleges discrimination with respect to employment and submitted that the discrimination she experienced occurred while employed by the proposed respondents. The applicant submitted that she did not have legal representation when she completed the Application. The proposed respondents are deemed to vicariously liable for the discriminatory acts of its employees, i.e., the individual respondents, pursuant to section 46.3(1) of the Code. Consequently, the Application does contain allegations could support a finding that the proposed respondent violated the Code. The request to add the proposed respondents comes at an early stage of the proceeding and no prejudice to them has been identified. Indeed, ABcann Medicinals Inc. consents to be added as a respondent. Counsel for the respondent states that ABcann Distributors Inc. is inactive and has not assets. I have no reason to doubt that assertion, but it is not a proper basis for declining to add an entity that apparently employed the applicant at the times material to the Application.

5The request to amend the requested remedies is unopposed and I see no reason not to grant the request. In any event, the Tribunal will generally allow requests to amend an applicant’s remedial relief, since the mere fact that a remedy has been requested is no indication that the Tribunal will grant it. This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding this issue.

Order

6The Tribunal orders as follows:

1. The request to add ABcann Medicinals Inc. and ABcann Distributors Inc. as respondents is granted and the style of cause shall be amended accordingly; and,

2. The request to amend the remedial relief requested in the Application is granted, as set out in the applicant’s Request for an Order During Proceeding filed on August 14, 2017.

7I am not seized.