Turnbull-Fay v. B. Lockie Group Inc. o/a Silver Cross, 2017 HRTO 998

Human Rights Tribunal of Ontario

Between:

Judith Turnbull-Fay, Applicant

-and-

B. Lockie Group Inc. o/a Silver Cross, Respondent

Interim Decision

Adjudicator: Esi Codjoe Date: August 4, 2017 Citation: 2017 HRTO 998 Indexed as: Turnbull-Fay v. B. Lockie Group Inc. o/a Silver Cross

Written Submissions

Judith Turnbull-Fay, Applicant Christina Gray, Counsel

B. Lockie Group Inc. o/a Silver Cross, Respondent Kyle D. Burgis, Counsel

1The purpose of this Interim Decision is to address the applicant’s request to amend her Application to add an additional respondent, to correct the name of the organizational respondent, and to amend the remedy sought in the Application.

2The applicant filed an Application alleging discrimination because of disability and record of offences contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondent failed to accommodate her disability in the workplace, and terminated her employment because she filed a Workplace Safety and Insurance Act (‘WSIA’) claim. Nonetheless, it is evident based on the pleadings that the Application concerns discrimination because of disability, and not record of offences.

Request to Add Personal Respondent

3The applicant has requested the addition of Bruce Lockie, owner of the corporation, as a personal respondent to the Application.

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 (“Smyth”), 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.

6The applicant submits that her Application pertains to Bruce Lockie’s conduct, namely discriminatory actions and statements. Further, she submits that it may be appropriate for the Tribunal to award damages against Bruce Lockie, in the event that an infringement of the Code is found.

7The respondent submits that the Application does not contain any allegations that Bruce Lockie engaged in discriminatory conduct, or that he uttered discriminatory statements. Rather, the Application says that the employer humiliated and belittled her in front of her colleagues. The respondent says that there are no issues in the Application that are with respect to Bruce Lockie’s personal actions. Next, the organizational respondent accepts vicarious liability with respect to Bruce Lockie in the event that the Tribunal makes a finding of discrimination.

8Applying the criteria outlined in Smyth and Persaud. It would be fair and just to grant the applicant’s request to amend the application to add Bruce Lockie as a personal respondent. The Application makes reference to the employer as “he” throughout, and lists Bruce Lockie as the owner of the corporation. It is evident that this person’s conduct is the central issue in the case. In the organizational respondent’s Response, it notes that the respondent’s wife was present for one of the incidents referenced in the Application. The Response seems to be authored by Bruce Lockie. These facts give rise to a strong inference that the person referred to in the Application is Bruce Lockie. In any event, the applicant has now clarified that the actions and conduct alleged to be discriminatory do pertain to the conduct of Bruce Lockie. The allegations about his conduct could also amount to a violation of the Code. Lastly, in the event that the Tribunal makes a finding of an infringement of the Code, it may be appropriate to award damages against the personal respondent.

9The respondent did not cite any specific prejudice that Bruce Lockie would face as a result of the applicant’s delay in seeking to add him as a personal respondent in this case. Bruce Lockie was named as the contact person for the organizational respondent; consequently he has had constructive notice of the Application. He also appears to have drafted the response. To that end, the organizational respondent was able to provide a comprehensive Response despite the fact that the applicant did not specifically state that the “he” she referred to throughout her Application was Bruce Lockie. There is also no dispute that Bruce Lockie is the owner of the corporation. Additionally, the request has been brought at a relatively early stage in the proceeding.

10The facts suggest that the request is appropriate. Applying the factors set out above, I find that it is appropriate to add Bruce Lockie as a personal respondent.

Other Requests:

11The applicant also requested that certain corrections be made to the name of the organizational respondent and the remedy sought in the Application. The organizational respondent consented to these amendments. Therefore, on consent of the parties, these requested amendments are granted.

Orders/Directions

12For the above reasons, the Tribunal orders as follows:

a. Bruce Lockie is added as a personal respondent to the Application and the style of cause is amended accordingly;

b. Bruce Lockie is directed to file a Response to the Application (Form 2) not later 21 days from the date of the Interim Decision or confirm whether he adopts the Response filed by the organizational respondent. The applicant may file an amended Reply to reply to any new issues raised in any Response filed by Bruce Lockie within 7 days of receiving the Response from Bruce Lockie;

c. The organizational respondent’s name is amended to B. Lockie Group Inc. o/a Silver Cross;

d. The remedy sought in the Application is amended to include the remedy of $30, 000.00 in general damages and $12,480.00 for loss of wages, inclusive of human rights training and policy development, as remedies for future compliance (public interest remedies).

13I am not seized of this matter.