Kovacevic v. AB SCIEX LP, 2017 HRTO 937

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Suzana Kovacevic Applicant

-and-

AB SCIEX LP and Emir Kovacevic Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 25, 2017 Citation: 2017 HRTO 937 Indexed as: Kovacevic v. AB SCIEX LP

WRITTEN SUBMISSIONS

Suzana Kovacevic, Applicant George Florea, Counsel

ABSCIEX LP, Respondent Sonia Regenbogen, Counsel

1The purpose of this Interim Decision is to address the applicant’s request to add Emir Kovacevic as a personal respondent to the Application as well as her request to amend the remedy sought in her Application.

2The applicant filed an Application alleging discrimination because of sex as well as sexual solicitation and/or advances contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that she was sexually harassed by Mr. Kovacevic and that the organizational respondent failed to adequately deal with the situation and terminated her employment. In her Application, the applicant alleged that Mr. Kovacevic was a directing mind of the corporate respondent. The respondent denied the applicant’s allegations, including her allegation that Mr. Kovacevic is a directing mind of the corporation.

3Accordingly, the applicant has requested that the Tribunal add Mr. Kovacevic as a personal respondent to the Application. The corporate respondent takes no position on the applicant’s request and Mr. Kovecevic did not respond to the applicant’s request to add him as a personal respondent.

Decision

4When determining a request to add a respondent, the Tribunal considers 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?

See Smyth v. Toronto Police Services, 2009 HRTO 1513.

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 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.

6Applying the factors set out above, I find that it is appropriate to add Mr. Kovacevic as a personal respondent. There are allegations contained in the Application that, if accepted, could lead to a finding of liability against Mr. Kovacevic. In particular, this is the case because, under s. 46.3 of the Code and applicable case law, the corporate respondent might not be vicariously liable for the alleged harassment by Mr. Kovacevic if he is not a directing mind of the corporation.

request to amend remedy

7By Request for Order During Proceedings filed on May 9, 2017, the applicant requested that the Tribunal amend the remedy sought in the Application from $250 000 to $500 000.

8In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.

9Having considered these factors, I grant the applicant’s request to amend the remedy sought in her Application. The Tribunal has regularly granted such requests to amend remedies in past decisions. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390 and Loney v. Combusco Enterprises, 2011 HRTO 1050.

10The parties should note that this 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 this issue.

order

11For the above reasons, The Tribunal orders as follows:

a. Emir Kovacevic is added as a personal respondent to the Application and the style of cause is amended accordingly. The Tribunal will deliver Mr. Kovacevic a copy of the Application, the Response of the corporate respondent, and the applicant’s Reply along with this Interim Decision.

b. Mr. Kovacevic is directed to file a Response to the Application (Form 2) not later than 35 days after from the date of the Interim Decision. The applicant may file an amended Reply to reply to the Response filed by Mr. Kovacevic within 14 days of receiving his Response.

c. The remedy sought in the Application is amended as set out above.

d. The mediation currently scheduled for August 3, 2017 is cancelled.

12I am not seized of this matter.