Garibay Loera v. Williams, 2017 HRTO 1311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karla Garibay Loera

Applicant

-and-

Richard Williams, Connie Crawford-Williams, and Tara Abell

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 5, 2017

Citation: 2017 HRTO 1311

Indexed as: Garibay Loera v. Williams

WRITTEN SUBMISSIONS

Karla Garibay Loera, Applicant

Peter Wadsworth, Representative

Richard Williams, Connie Crawford-Williams, and Tara Abell, Respondents

Self-represented

Introduction

1The purpose of this Interim Decision is to deal with (1) a deficiency in the original Application, (2) the applicant’s request to add two individuals as respondents to the Application, and (3) the applicant’s request to amend the Application to add new allegations of harassment and reprisal.

BACKGROUND

2On September 14, 2016, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which named Richard Williams as a respondent (the “respondent Williams”), and alleged that he had discriminated against her with respect to the employment because of her race, place of origin, and sex, and subjected her to sexual harassment and a sexual advance.

3On November 21, 2016, the respondent Williams filed a Response to the Application, which denied the allegations of discrimination, sexual harassment, and a sexual advance.

4On July 28, 2017, the parties attended a mediation at the Tribunal, which did not result in a settlement.

5On August 8, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”), which requested to add two individuals, Connie Crawford-Williams and Tara Abell, who are the respondent Williams’ wife and stepdaughter, as respondents to the Application, and to amend the Application to include new allegations of harassment and reprisal against the respondent Williams, Ms. Crawford-Williams and Ms. Abell.

6On August 28, 2017, the respondent Williams, Ms. Crawford-Williams and Ms. Abell collectively filed a Response to the RFOP, which opposed the applicant’s request on the basis that her new allegations of harassment and reprisal are untrue. They attached a “Schedule A” which responded specifically to these new allegations.

ANALYSIS

Deficiency in Original Application

7I will deal first with a deficiency in the original Application.

8I have noticed that in section 5. (“Grounds Claimed”) of the Application, the applicant did not check off the box for “Reprisal or Threat of Reprisal”, but in other parts of the Application, she alleged that the respondent Williams subjected her to a reprisal/threat of reprisal. Her allegation appears to be that when she asserted her right to a workplace free of sexual harassment, the respondent Williams subjected her to a reprisal/threat of reprisal by advising her that he wished the physical assault had been more severe. (see para. 17 of Schedule “A” of the Application).

9In his Response, the respondent Williams did not specifically respond to this allegation of reprisal/threat of reprisal, presumably because “Reprisal or Threat of Reprisal” was not checked off in section 5. of the Application. As a matter of fairness, he is entitled to file a response to his specific allegation. Therefore, within 35 days of the date of this Interim Decision, he shall file written submissions responding to this specific allegation of reprisal/threat of reprisal.

10Within 14 days of receiving the written submissions of the respondent Williams, the applicant may file a Reply in accordance with Rule 9 of the Tribunal’s Rules of Procedure (the “Rules”).

Request to Add Respondents to Application

11I will deal next with the applicant’s request to add Ms. Crawford-Williams and Ms. Abell as respondents to the Application.

12Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add a party. In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following test for adding a respondent at para. 12:

(…) 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 or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. 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, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

13In the case at hand, only the first and third questions are applicable because there is no organization respondent.

14The request to add Ms. Crawford-Williams and Ms. Abell as respondents to the Application is granted. There are allegations of harassment and reprisal against them that could, if true, lead to a finding that the Code was infringed, and the hearing of the merits of the Application has not yet been scheduled, which means that there is minimal prejudice to the respondent Williams or them in adding them as respondents at this stage. The title of proceeding is amended accordingly. (Hereafter in this Interim Decision, Ms. Crawford-Williams shall be referred to as the “respondent Crawford-Williams” and Ms. Abell shall be referred to as the “respondent Abell”.)

Request to Amend Application

15I will deal next with the applicant’s request to add new allegations of harassment and reprisal against the respondent Williams, the respondent Crawford-Williams, and the respondent Abell.

16In determining a request to amend an Application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

17The applicant’s request to amend the Application is granted. The new alleged incidents occurred after the Application was filed, and the respondent Williams, the respondent Crawford-Williams, and the respondent Abell have not identified any significant prejudice that would result to them if the request is granted. Furthermore, the hearing of the merits of the Application has not yet been scheduled.

18Within 35 days of the date of this Interim Decision, the respondent Crawford-Williams and the respondent Abell shall file Responses (Form 2). They may include the “Schedule A” of their Response to the applicant’s RFOP for section 9. (“Responding to the Allegations”) of their Responses (Form 2).

19Within 14 days of receiving the Responses (Form 2), the applicant may file a Reply with respect to the respondent Williams, the respondent Crawford-Williams, and the respondent Abell’s “Schedule A” in accordance with Rule 9 of the Tribunal’s Rules.

ORDER

20The Tribunal makes the following orders and directions:

1. Within 35 days of the date of this Interim Decision, the respondent Williams shall filed written submissions responding to the specific allegation of reprisal/threat of reprisal in the original Application.

2. Within 14 days of receiving the written submissions of the respondent Williams, the applicant may file a Reply in accordance with Rule 9 of the Tribunal’s Rules.

3. The applicant’s request to add Ms. Crawford-Williams and Ms. Abell as respondents to the Application is granted. The title of proceeding is amended accordingly.

4. The applicant’s request to amend the Application to include new allegations of harassment and reprisal against the respondent Williams, the respondent Crawford-Williams, and the respondent Abell is granted.

5. Within 35 days of the date of this Interim Decision, the respondent Crawford-Williams and the respondent Abell shall file Responses (Form 2). They may include the “Schedule A” of their Response to the applicant’s RFOP for section 9. (“Responding to the Allegations”) of their Responses (Form 2).

6. Within 14 days of receiving the Responses (Form 2), the applicant may file a Reply with respect to the respondent Williams, the respondent Crawford-Williams, and the respondent Abell’s “Schedule A” in accordance with Rule 9 of the Tribunal’s Rules.

21I am not seized of this matter.