In an interim decision, the Human Rights Tribunal of Ontario (HRTO) has allowed an alleged victim of workplace sexual harassment to add an individual respondent to her case and increase the damages sought by $50,000 to $200,000.
The application initially named only the employer, Niagara Outdoor Landscaping, as a respondent, but following consultation with her counsel she sought to include an individual employee directly due to his personal conduct being central to her claims.
Allegations and background
S.S., who worked for a landscape and construction supply company regularly servicing Niagara Outdoor Landscaping, alleges that J.H. began sexually harassing her in April 2017. According to the application, the inappropriate conduct escalated in August 2017 when he exposed himself to her, an incident captured on video.
Following this incident, the owner of Niagara Outdoor Landscaping reportedly assured S.S. that J.H. would no longer be allowed at her workplace. However, S.S. claims that in October 2018, she saw him again at her workplace, sitting in a vehicle belonging to Niagara Outdoor Landscaping. This led to her filing the application with the HRTO on Oct. 9, 2019.
Tribunal’s considerations
The tribunal considered several factors in its decision to grant S.S.’s requests. According to Rule 1.7 of the Tribunal’s Rules of Procedure, amendments to filings can be allowed if they are consistent with a fair, just, and expeditious resolution of the matter. The tribunal noted that Niagara Outdoor Landscaping did not respond to her request for an order during proceedings, thus leading the tribunal to determine the issue based on S.S.’s submissions and applicable law.
Adjudicator McNair cited the tribunal’s previous decisions, particularly in Sigrist and Carson v. London District Catholic School Board (2008 HRTO 14), which outlined the principles for adding personal respondents. He noted that the allegations against J.H. were of a nature that required his addition as a respondent due to the specific and personal conduct involved.
This conduct is expressly excepted from the principle that employers are deemed liable for their employees’ acts under Section 46.3 of the Human Rights Code.
Order for contact information
In addition to adding J.H. as a respondent, the tribunal ordered Niagara Outdoor Landscaping to provide contact information for him within 14 days of the decision. S.S had argued that she had no means of determining his whereabouts without the company’s assistance.
The tribunal found this request consistent with ensuring a fair and just resolution of the application.
Increase in damages
S.S. also sought to amend her application to increase the damages sought from $150,000 to $200,000. The tribunal granted this request, noting that it did not prejudice any party since the case remained at the pre-hearing stage with no evidence yet called.
The decision to allow the amendment does not predetermine the outcome of the application or the appropriateness of the damages sought. The tribunal emphasized that it would determine the appropriate damages if any contravention of the Code is found, referencing Philip v. Board of Governors of Exhibition Place (2016 HRTO 434).
For more information, see Smith v. Niagara Outdoor Landscaping, 2024 HRTO 952 (CanLII).
