Aniceto v. Goldcorp Canada Ltd., 2017 HRTO 1576

Human Rights Tribunal of Ontario

B E T W E E N:

Cassie Marie Aniceto Applicant

-and-

Goldcorp Canada Ltd. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: November 29, 2017
Citation: 2017 HRTO 1576
Indexed as: Aniceto v. Goldcorp Canada Ltd.

Introduction

1This Application alleges reprisal and discrimination with respect to employment because of age and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed a Form 10 Request for an Order During Proceedings (“Request”) seeking to add an individual respondent in these proceedings. The corporate respondent filed a response opposing the applicant’s Request on behalf of the proposed respondent.

3The personal respondents also filed a Request seeking to be removed as parties to these proceedings. The applicant filed a response opposing the personal respondents’ Request.

4The 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?

5The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondents 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 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.

6The factors from Persaud, above, 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.

7In the Application, filed September 1, 2016, the applicant alleges the corporate respondent and three individual respondents discriminated against her on the basis of her age and disability.

add individual respondent

8In her Request, filed December 17, 2016, the applicant requests that an individual be added as a respondent, namely her supervisor, Jim Walker. The Application includes a complaint of harassment.

9Applying the considerations set out in Smyth and Persaud, I do not find it appropriate to add the proposed respondent. The corporate respondent does not allege that Mr. Walker was acting outside the scope of his employment when he engaged in the actions alleged by the applicant, and it accepts liability for them.

10The applicant’s allegations involve being sent home, receiving a negative review and a refusal to schedule a make-up shift for her. These are routine employment matters for which the corporate respondent accepts liability, and which do not necessitate adding this personal respondent.

11For these reasons the applicant’s Request to add the proposed respondent, Jim Walker, is denied.

remove individual respondents

12The respondent requests that the Tribunal remove the personal respondents, Debbie Coughlin, Fern Gaspar and Lindsay Botterill. For similar reasons to those above, the individual respondents’ request to be removed is granted.

13The actions about which the applicant complains were routine employment matters, and the corporate respondent accepts liability for them. The applicant’s allegations do not include any that would warrant a remedy against an individual respondent.

14Therefore, the individual respondents’ request to be removed is granted.

order and next steps

15The applicant’s request to add the individual respondent, Jim Walker, is denied.

16The individual respondents’ request to be removed is granted.

17The style of cause has been amended accordingly.

18This matter will be scheduled for a one-day hearing.

19I am not seized of this matter.