HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Antonio Ruiz Applicant
-and-
RioCan Management Inc., RioCan Real Estate Investment Trust, DTZ Canada Inc., VP Protection Inc. and GDI Services (Canada) LP Respondents
-and-
Service Employees International Union, Local 2 (BGPWU) Intervenor
INTERIM DECISION
Adjudicator: Josée Bouchard Date: July 21, 2017 Citation: 2017 HRTO 917 Indexed as: Ruiz v. RioCan Management Inc.
WRITTEN SUBMISSIONS
Antonio Ruiz, Applicant Andrew Langille, Counsel
RioCan Management Inc. and RioCan Real Estate Investment Trust, Respondents Hendrik Nieuwland, Counsel
DTZ Canada Inc. and Cushman & Wakefield Ltd., Respondents Elliot Saccucci, Counsel
GDI Services (Canada) LP, Respondent Keith Burkhardt, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, RSO 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to address the respondents’, RioCan Management Inc. (“RioCan Management”) and RioCan Real Estate Investment Trust (“RioCan Trust”), request to add a respondent, VP Protection Inc. (“VP Protection”). The Interim Decision also addresses the respondents’, DTZ Canada Inc. (“DTZ”) and Cushman & Wakefield Ltd. (“C&W”), request to add a respondent, GDI Services (Canada) LP (“GDI”), and to remove C&W as a respondent.
2The proposed organizational respondent GDI filed a Response to a Request for an Order opposing the request to add it as a respondent.
3The applicant has not filed Responses to the Requests for an Order.
The Respondents and Proposed Respondents
4Between February 3, 2014 and November 20, 2015, the applicant worked at the Yonge and Eglinton Centre (“Centre”) as a Janitor.
5The respondent RioCan Trust is the owner of the Centre.
6The respondent RioCan Management is the operator of the Centre.
7GDI provides facility services including cleaning, maintenance, sanitation and support services to a broad range of clients. From at least June, 2012 until March 31, 2015, GDI had a contract with RioCan Management to provide cleaning and maintenance services at the Centre. GDI was the applicant’s employer from February 3, 2014 to April 2015 when DTZ took over the contract to provide cleaning and maintenance services.
8The respondent, DTZ, doing business as C&W, provides cleaning and maintenance services for various buildings and facilities across Canada, including the Centre. Although DTZ carries on business under the trade name C&W Services, C&W is a separate company from DTZ. C&W carries on a corporate real estate business.
9The respondent, RioCan Management, contracted with DTZ to perform janitorial services at the Centre as of April 1, 2015. RioCan Management is the acting agent for the owner of the Centre.
10DTZ employed the applicant from April 2015, when it took over the contract for the Centre, until November 20, 2015, when the applicant left his employment.
11VP Protection is a firm that provides security services and at all material times it had a contract of service with RioCan Management to provide security services at the Centre.
Analysis and Decision
12The 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:
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?
13The 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 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, 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.
Adding VP Protection
14The applicant alleges in his Application that employees of VP Protection were responsible for several instances of discrimination or harassment. The alleged discrimination or harassment includes;
a. intimidation, harassment and verbal abuse of the applicant;
b. a failure to report instances of verbal abuse;
c. taking photographs of the applicant while working and on breaks with increasing frequency; and
d. asking questions regarding his feelings on work and other matters with increasing frequency.
15These allegations, if proven, could support a finding that VP Protection violated the applicant's rights under the Code.
16Pursuant to s. 46.3 (1) of the Code, VP Protection could be held liable for the actions of its employees. VP Protection, as the employer of various individuals identified in the Application, is best positioned to address these allegations.
17This proceeding is in its infancy and I find that the addition of VP Protection at this time will not result in any negative effect on the hearing process, nor will it prejudice the other parties.
18VP Protection is added as a respondent to this Application.
Adding GDI
19GDI employed the applicant from February 3, 2014 until March 31, 2015. In April 2015, DTZ took over the contract to provide cleaning and maintenance services at the Centre. DTZ hired most or all of the GDI employees working at the Centre, including the applicant, pursuant to its contract and the Employment Standards Act.
20Many of the allegations in the Application relate to the period of time when the applicant was employed by GDI. In fact, the applicant notes in his Application that GDI is listed as one of the respondents on the Application. However, the applicant failed to list GDI as a respondent.
21The Application contains numerous allegations against GDI, including the following:
a. Paragraph 11 of Schedule A lists employees of GDI that the Applicant says “are implicated in the Application”.
b. DTZ states that a number of the employees of DTZ listed in para. 10 were employed by GDI at the time of the alleged harassment or discrimination.
c. The applicant alleges that he began experiencing harassment and discrimination at work in November 2014, when his supervisor returned from maternity leave. The applicant and his supervisor were employed by GDI at that time.
d. The applicant makes various allegations of harassment and discrimination by his supervisor and other employees of GDI in paras. 31-50, all of which were alleged to have occurred before DTZ hired the applicant or his supervisor on or about April 30, 2015.
22DTZ denies any liability for any acts or omissions alleged to have been committed by GDI or its employees and for any alleged incidents occurring before April 30, 2015.
23GDI opposes the request that it be added as a respondent. GDI acknowledges that in the Application, the applicant makes a number of statements regarding his employment relationship with the company. GDI submits that these statements provide context for the substance of the allegations articulated against the named respondents. However, at no time does the applicant allege that GDI violated the Code. To that end, GDI notes that the applicant did not name GDI as a party, nor does it allege GDI breached the Code and no remedies are sought against GDI. GDI further notes that the request to add a party has not been made by the Applicant, but instead, has been raised by a respondent. As a result, GDI submits that the applicant has, by his actions and pleadings, clearly indicated that he has no complaint against GDI and seeks no remedy against it. As a result, GDI submits that there are no allegations made that could support a finding that it violated the Code.
24GDI further submits that it would not be fair, in all the circumstances, to add it as a respondent to the Application. GDI takes this position because the allegations pertain to incidents that occurred over twenty six (26) months prior to it becoming aware of the Application and a number of the individuals named in the Application are no longer employed by GDI. As a result, GDI will be severely prejudiced in its ability to fully respond to the Application.
25I find that GDI should be added as a respondent to this Application for the following reasons:
a. The proceeding is at an early stage and the addition of GDI at this time will not result in any negative effect on the hearing process, nor will it prejudice the other parties;
b. GDI has received notice of this request;
c. The applicant has made allegations dating back to November 2014, a period of time when GDI was the applicant’s employer;
d. GDI is likely to have the best evidence in respect of the allegations of harassment and discrimination by its employees between November 2014 and April 30, 2015; and
e. GDI is deemed liable for the acts and omissions of its employees committed during their employment with GDI.
26GDI is added as a respondent to this Application.
Removing C&W
27In its Request for an Order During Proceedings, DTZ requests that C&W be removed as a respondent to this Application, including for the following reasons:
a. C&W is a separate corporate entity;
b. C&W had no involvement in the facts at issue;
c. the Application contains no allegations against C&W specifically; and
d. DTZ can provide a remedy for any acts or omissions of DTZ or C&W that may be found.
28In the Application, the applicant refers to a company called “Cushfield & Wakefield, Inc.”. DTZ and C&W maintain that they have no knowledge of an entity called “Cushfield & Wakefield Inc.” and they assume that the applicant incorrectly referred to “Cushfield & Wakefield Inc.” to mean “Cushman & Wakefield Ltd.”. I agree with DTZ and C&W that this is a likely explanation and treat the references to “Cushfield & Wakefield Inc.” in the Application to mean “Cushman & Wakefield Ltd.”.
29I find that C&W should be removed as a respondent as there appear to be no allegations in the Application or the Reply against C&W. The employees referred to by the applicant as employees of DTZ or C&W are all employees of DTZ, not C&W. The applicant was employed by DTZ and GDI and not C&W. C&W and DTZ are separate companies that are ultimately owned by the same group of investors. Although DTZ carries on business under the trade name C&W Services, DTZ and C&W are separate legal entities. C&W has no involvement with any of the facts described in the Application. It was DTZ, and not C&W, that entered into a contract with the respondent RioCan Management for janitorial services. It was DTZ, and not C&W, that employed the applicant and other former employees of GDI.
30Accordingly, the respondent C&W is removed as a respondent from the Application.
Order
31for the above reasons, the Tribunal orders as follows:
a. VP Protection is added as a respondent to this Application and the style of cause is amended accordingly.
b. GDI is added as a respondent to this Application and the style of cause is amended accordingly.
c. C&W is removed as a respondent to this Application and the style of cause is amended accordingly.
Next Steps
32The respondents VP Protection and GDI shall be provided with a copy of the Application, the respondents’ Responses and the applicant’s Reply, along with a copy of this Interim Decision, and are directed to file a Response to the Application (in Form 2) not later than 35 days after a copy of the Application is sent. The applicant may file an amended Reply to reply to the Responses filed by VP Protection and GDI within 14 days of receiving he Responses from VP Protection and GDI.
33I am not seized of this matter.
Dated at Toronto, this 21st day of July, 2017.
“Signed by”
Josée Bouchard Vice-chair