Huston v. Ryan ULC, 2017 HRTO 1464

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Huston Applicant

-and-

Ryan ULC and C&W Facility Services Canada Ltd. Respondents

INTERIM DECISION

Adjudicator: Yasmeena Mohamed Date: November 6, 2017 Citation: 2017 HRTO 1464 Indexed as: Huston v. Ryan ULC

WRITTEN SUBMISSIONS

David Huston, Applicant Wade Poziomka, Counsel

C&W Facility Services Canada Inc. Melanie D. McNaught, Counsel

Introduction

1The purpose of this Interim Decision is to decide the applicant’s request to amend the Application to add a respondent, C&W Facility Services Canada Inc. (“C&W Services”), and to add services and contract as a social area.

BACKGROUND

2On December 21, 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 Ryan ULC (Ryan) and Bentall Kennedy (Bentall) as respondents. Specifically, the applicant alleges that the respondents discriminated against him by failing to accommodate him and terminating his employment because of his disability.

3Bentall filed a Response denying the allegations and any relationship with the applicant. The Response identified C&W Services as the entity which provided the janitorial services at issue in the Application.

4On April 19, 2017, the applicant asked to withdraw his Application against Bentall. On April 26, 2017, the Tribunal granted the request and Bentall was removed as a respondent from the Application.

5On July 6, 2017, the applicant filed a Request for an Order During Proceedings (“RFOP”) asking to amend the Application to add C&W Services as a respondent and to add services and contracts as a social area.

6In the RFOP, the applicant alleges that C&W Services, as a service provider, engaged in adverse effect discrimination on the basis of disability and failed to accommodate the applicant to the point of undue hardship. In addition, the applicant alleges that C&W, as an employer, is vicariously liable for the acts and omissions of its employees and is therefore liable for its employee’s failure to accommodate the applicant to the point of undue hardship.

7On October 2, 2017, C&W Services filed a Response to the RFOP, opposing the applicant’s request on the basis that it is unfair, untimely and will result in substantial prejudice to C&W Services if it were to be added as a respondent.

8Ryan did not respond to the RFOP and the time for doing so has expired.

ANALYSIS

Request to add respondent

9Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add a party. The test for adding a respondent is articulated in Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

(…) 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.

10Applying the factors set out above, I find it appropriate to add C&W Services as a respondent to the Application. I believe that the conduct of the janitor, an employee of C&W Services, is central to the issues in the Application, as the applicant has made allegations that the janitor failed to accommodate his disability. If this allegation is found to be true, it could lead to a finding of a Code violation against C&W Services as the service provider in these circumstances.

11C&W Services argues that the applicant’s allegations in the RFOP pertain to an incident that occurred sometime in June 2016, over one year before the filing of the RFOP on July 6, 2017 and are therefore untimely under section 34(1) of the Code. The applicant alleges that the incident occurred in July 2016, rendering the RFOP timely. None of the parties have provided the actual date of the incident, therefore I make no dtermination of timeliness. I am satisfied that any delay in naming C&W Services as a respondent is explained by the fact that the applicant only became aware of the specific service provider when Bentall filed its Response and he moved within a reasonable period of time to ask the Tribunal to permit him to add the proper respondent. I therefore find that the delay, if any, is not substantial enough to prejudice C&W Services' ability to investigate the matter, secure witnesses and provide a full defence in this matter.

12I find that the RFOP has not disrupted and or delayed the proceeding as the Application is in a relatively early stage of the proceeding and no mediation and/or hearing has been scheduled.

13For all of the above reasons, the Application is amended to add C&W Services as a respondent.

Request to add social area

14The applicant’s request to add services and contracts as social areas is granted in part. The applicant has no contractual relationship with C&W Services. On the other hand, the facts may support a finding that C&W Services provided the applicant with services and the Application should be amended to reflect this.

15The Tribunal frequently grants requests to add social area to applications if the amendment does not change the nature of the allegations but instead better reflects the social area engaged by these allegations. See, for example, Cunneen v. Tri County Hockey, 2015 HRTO 1477 at para. 12.

ORDER

16For the reasons set out above, the Tribunal grants the applicant’s request to add C&W Services as a respondent and to amend the Application to add the social area of goods, services and facilities.

17The Tribunal orders the following:

a. The title of the Application is amended to add C&W Services as a respondent.

b. The Application is amended to include the social area of goods, services and facilities.

c. Within 35 days of the date of this Interim Decision, C&W Services must file a Response to the Application in accordance with the Tribunal's Rules.

18I am not seized of this matter.