Andreana Henry v Princess Entertainment Corporation

• Jurisdiction: Trinidad & Tobago
• Judge: H.H. Donna Prowell-Raphael
• Judgment Date: 25 September 2019
• Court: Equal Opportunity Tribunal (Trinidad and Tobago)
• Docket Number: E.O.T. No. 0002 of 2016
• Date: 25 September 2019

IN THE EQUAL OPPORTUNITY TRIBUNAL

Before

H.H. Donna Prowell-Raphael

E.O.T. No. 0002 of 2016

Between

Andreana Henry

Complainant

and

Princess Entertainment Corporation

Trinidad and Tobago Limited

Owners and Managers of Royal Princess Members Club

Respondent

APPEARANCES

Mr. Ancil Moses for the Complainant.

Ms. Christlyn Moore for the Respondent.

DECISION

Contents

The Equal Opportunity Tribunal	3
The Complaint	3
The Applications	3
The Respondent	3
The Complainant's Concession	4
Notice of Application	4
The Respondent	5
The Issues	5
The Submissions	6
Respondent's First Application / The Complainant's Concession	6
The Complainant's Application	6
Respondent's Second Application	7
Law and Analysis	7
Costs	11
Disposition	12

The Equal Opportunity Tribunal

1 The Equal Opportunity Tribunal 1 (‘the Tribunal’) is an anti-discrimination court established by the Equal Opportunity Act 2 (‘the Act’). The Act permits a person who claims that he has been discriminated against to submit 3 “ a written complaint … selling out the details of the alleged act of discrimination” to the Equal Opportunity Commission (‘the Commission’). If the complaint, after investigation cannot be or is not resolved through conciliation by the Commission, the Commission is mandated, with the consent and on behalf of the Complainant, to institute proceedings before Tribunal for judicial determination of the complaint.

The Complaint

2 These proceedings were initiated by referral dated 25 ^th January, 2016 from the Equal Opportunity Commission (‘the Commission’). The Complaint Form is dated and filed 16 ^th March, 2016. In these proceedings the Complainant seeks a declaration that she was victimised, damages under various heads, costs and interest.

The Applications

The Respondent

3 The Respondent has filed two (2) Notices of Application.

4 In its first Notice (‘the Respondent's first application’) filed on 20 ^th April, 2016, the Respondent seeks an order removing the Princess Entertainment Corporation Trinidad and Tobago Limited as an Interested Party/Respondent in these proceedings. The grounds of this application are that —

• (i) the Princess Entertainment Corporation Trinidad and Tobago Limited is a limited liability company duly incorporated under the Companies Act Chap 81:01 with its principal place of business at Level 2 Movie Towne Invaders Bay at Audrey Jeffers Highway, Port of Spain;

• (ii) Princess Entertainment Corporation Trinidad and Tobago Limited is not the owner or manager of Royal Princess Members Club and or does not trade by that name;

• (iii) Royal Princess Members Club is an unincorporated body registered under the Registration of Clubs Act Chap 21:01 who was at all material times the employer of the Complainant.

5 This Respondent's first application is supported by the affidavit of Christlyn Moore (‘the Respondent's first affidavit’) sworn to on 20 ^th April, 2016 and filed herein on the same day. In this affidavit she deposes to the same facts and matters set out in the grounds of the application.

The Complainant's Concession

6 By Notice dated and filed on 15 ^th January 15, 2019, (‘the Claimant's concession’) the Complainant concedes that the Respondent does not constitute a proper party to the proceedings.

Notice of Application

7 By Notice of Application dated and filed on the said 15 ^th January, 2019 (‘the Complainant's application’) the Complainant applies for the following orders —

• (i) For leave to amend the intitulation of the proceedings to have the Respondent read as “ CHRISTLYN MOORE, OGUZ TAYANC AND HURAN ERBAY, the members of the Committee of the ROYAL PRINCESS CHAGUANAS MEMBERS CLUB”;

• (ii) Leave he granted to the Complainant to serve the said amended proceedings on the Respondents as amended.

8 The Complainant's application is supported by the affidavit of the Complainant (‘the Complainant's affidavit’) sworn to on 15 ^th January 2019 and filed herein on the same day.

9 The grounds of the application are that —

• (i) the justice of the case requires the said amendment; and

• (ii) the Complainant concedes that the Respondent/s as currently stated is/are not proper parties to the proceedings.

The Respondent

10 By its second application (“the Respondent's second application) filed on 25 ^th March, 2019, the Respondent seeks —

• (i) Costs thrown away to date and consequent on the concession dated 15 ^th January, 2019 and admission of the Complainant that the named Respondent does not constitute the proper party to this action;

• (ii) That these costs be assessed in default of agreement;

• (iii) That the application of the Complainant be dismissed as being time barred pursuant to section 30(2) of the Equal Opportunity Act (‘the Act’) and for want of service on the proposed new parties; and

• (iv) That the claim be dismissed.

11 The Respondent's second application is supported by the affidavit of Anil Barachi (‘the Respondent's second affidavit’) sworn to on 25 ^th March, 2019 and filed herein on the same day. In this application the Respondent deposes to the chronology of the matter and the grounds of the Respondent's first application.

12 The grounds of the Respondent's second application can be summarised as follows —

• (i) The Complainant having conceded that the wrong Respondent is before the Tribunal, costs must follow the event;

• (ii) The proposed substitution constitutes a new claim that is now time-barred;

• (iii) The proposed Respondents have not been served with this application;

• (iv) The Complainant knew or ought to have known or had adequate time and opportunity to discover from the public records the identity of the proposed Respondents.

• (v) The substitution of the proposed Respondents would be prejudicial to them.

The Issues

13 The issues raised for determination by the several applications are

• (i) Whether the said Christlyn Moore, Oguz Tayanc and Huran Erbay (‘the Committee members’) who were not originally parties to the proceedings can be substituted for the Respondent at this stage?

• (ii) If so, whether the action against these persons would be time-barred?

The Submissions

Respondent's First Application The Complainant's Concession

14 The Complainant's concession that the Respondent is not a proper party to this action rectifies the mischief raised in the Respondent's first application so therefore there is no need for further consideration of that application. I am prepared to give effect to the concession by striking out the existing Respondent which would encompass the relief prayed in the Respondent's first application.

The Complainant's Application

15 In support of the Complainant's application, the Complainant has filed the Complainant's affidavit. The Complainant deposes at paragraphs 4 & 5 of that affidavit that pursuant to the Freedom of Information Act ( FOIA'), she sought information about the membership of the Royal Princess Members Club and that this information only became available when the requested information was furnished to her attorneys under cover of letter dated 28 ^th June, 2018. The letter seeking the information which is annexed and marked “A” to the Complainant's affidavit, is dated 20 ^th June. 2018

16 At paragraph 6 of the Complainant's affidavit she deposes that up to the time she saw that letter, as far as she was aware, the Royal Princess Members Club was her employer. She states that she “…was led so to believe based on several factors including documents pertaining to [her] employment, in which ROYAL PRIVATE MEMBERS CLUB is referenced, leading to an obvious and reasonable presumption that they were [her] employer”.

17 The Complainant contends that the Tribunal has the power under Part 19 of the Civil Proceedings Rules 1998 (as amended) (‘CPR’) to substitute Committee Members for the Respondent as prayed by her.

Respondent's Second Application

18 The Respondent herein is framed as “Princess Entertainment Corporation Trinidad and Tobago Limited Owners and Managers of Royal Princess Members Club”, In its written submissions filed in response to the Application on 6 ^th February, 2019 the Respondent reiterates that the Princess Entertainment Corporation Trinidad and Tobago Limited is a legal entity in itself that does not operate under the trade name Royal Princess Members Club. The Complainant has failed to show any contractual nexus between the Princess Entertainment Corporation Trinidad and Tobago Limited and the Complainant.

19 The Complainant is asking the Tribunal to substitute the Committee members as Respondents. The Respondent contends that to do so would create a new action against these persons, who were not originally Respondents. The time for bringing the Complaint against them under the Act would be within six (6) months of the alleged wrongful conduct pursuant to section 30 4 of the Act. The alleged wrongful conduct took place in 2012–2013, the action would thereby be time barred.

Law and Analysis

20 The Tribunal has power under section 46 of the Act to join parties on terms and conditions it considers appropriatet 5. The Equal Opportunity Tribunal Rules of Practice and Procedure (‘ETR’) make provision in Rule 16 6 for the joinder intervention of parties in instances where

new parties are to be added to the original parties The ETR does not provide for the substitution of parties

21 Rule 24.1 7 of the ETR provides that where they do not expressly provide the ‘CPR’ would apply mutatis mutandis Part 19 of the CPR provides for the substitution of parties to an action. By virtue of Rule 24 1 the ETR. material provisions in Part 19 of the CPR would therefore apply mutatis mutandis to the issues for determination Parts 19 1. 19.2, 19 5 and 19 6 of the CPR are reproduced in the footnote below 8

22 The amendment being sought by the Complainant seeks...