HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Noran Sallam
Applicant
-and-
Oracle Canada ULC and Laura Cigana
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Sallam v. Oracle Canada ULC
WRITTEN SUBMISSIONS
Noran Sallam, Applicant
Anna Kalinichenko, Counsel
Oracle Canada ULC and Laura Cigana, Respondents
Lisa Cabel, Counsel
1The purpose of this Interim Decision is to address the applicant’s request to add a personal respondent to the Application and her requests to amend the Application.
2The applicant filed an Application on March 7, 2017 alleging discrimination because of race, place of origin, ethnic origin and sex contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In essence, the applicant alleged that she was subject to harassment and/or a poisoned work environment due to comments and jokes that her supervisor and/or co-workers made in the workplace in and around July and August 2016.
Request to add personal respondent
3By Request for Order During Proceedings (“RFOP”) filed on August 8, 2017, the applicant requested that the Tribunal add Laura Cigana as a personal respondent to the Application. Ms. Cigana was the applicant’s supervisor. She submitted that the Tribunal should add Ms. Cigana as a personal respondent because Ms. Cigana’s alleged actions are central issues in the Application.
4The corporate respondent opposed the applicant’s request. Among other things, the corporate respondent sought to rely on s. 46.3(1) of the Code which states that an employer is deemed liable, in certain circumstances, for any act done by an employee in the course of his or her employment for the employer. The respondent submitted that all of Ms. Cigana’s alleged actions were carried out in the course of her employment and therefore the corporate respondent would be deemed liable for them. The corporate respondent also submitted that the applicant unreasonably delayed in making her request and that Ms. Cigana would be prejudiced by being added as a respondent at this stage of proceedings.
Decision
5When determining a request to add a respondent, the Tribunal considers the following three questions:
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.
6The 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.
7Applying the factors set out above, I find that it is appropriate to add Ms. Cigana as a personal respondent to the Application. I agree with the applicant that Ms. Cigana’s conduct is a central issue in the Application, as the applicant has made several allegations of harassment against Ms. Cigana. I do not agree with the corporate respondent that s. 46.3(1) provides a reason not to add Ms.Cigana as a respondent. That section expressly excludes from its ambit allegations of harassment made under s. 5(2) and sexual harassment made under s. 7 of the Code. I also do not agree that the applicant’s delay in making her request is a reason to deny it. The applicant made her request within one year of the last in a series of incidents alleged in her Application. As well, this Application remains at a relatively early stage of proceedings. Although the Tribunal has conducted a mediation, no hearing has yet been scheduled.
8For these reasons, Ms. Cigana is added as a personal respondent to this Application.
request to add ground of reprisal
9The applicant requested to add the ground of reprisal as a result of the corporate respondent’s acceptance of her alleged involuntary resignation. The corporate respondent opposed this request by disputing that it reprised against the applicant.
10The submissions made by the respondent are submissions that are more properly made in a merits hearing. They are not reasons to deny the applicant’s request to add the ground of reprisal.
request to amend remedy
11The applicant requested to amend the remedy she sought in the Application from $35 000 to $150 000 for compensation for injury to dignity, feelings and self-respect. She also reserved the right to amend any lost wages request.
12The corporate respondent opposed this request on the basis that the amounts claimed by the applicant are excessive, remote and not recoverable at law.
13The applicant’s request to amend the remedy she is seeking is granted. The Tribunal has regularly granted such requests in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.
14This 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 respondents may wish to take regarding the excessiveness of the damages sought at the hearing.
order
15For the above reasons, the Tribunal orders as follows:
a. Laura Cigana is added as a personal respondent to the Application and the style of cause is amended accordingly. If Ms. Cigna wishes to file a Response that is different from the Response filed by the corporate respondent, she must do so within 35 days from this Interim Decision. If Ms. Cigana wishes to adopt the Response filed by the corporate respondent she must advise the Tribunal and applicant of this within 35 days of the date of this Interim Decision. The applicant may file a Reply to any Response filed by Ms. Cigana within 14 days of receiving any Response.
b. The Application is amended to add the ground of reprisal and the reprisal allegations contained in the applicant’s August 8, 2017 RFOP. The remedy sought in the Application is also amended to the remedy set out in the RFOP. If the corporate respondent wishes to amend its Response to address these amendments, it must do so within 35 days from the date of this Interim Decision. The applicant may file a Reply to any amendments made by the corporate respondent to its Response within 14 days of receiving any amended Response.
16I am not seized of this matter.
Dated at Toronto, this 27th day of October, 2017.
:”Signed by”
Jo-Anne Pickel
Vice-chair