Blair v. Ottawa Police Services Board, 2009 HRTO 1237

Human Rights Tribunal of Ontario

B E T W E E N:

Dwain Blair

Applicant

-and-

Ottawa Police Services Board, Vincent Bevan and Gerald Sabourin

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: August 10, 2009

Citation: 2009 HRTO 1237

Indexed As: Blair v. Ottawa Police Services Board

1This is an Application filed January 7, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a Request for an Order During Proceedings for the removal of the personal respondent Herbert Kreling.

2The applicant alleges discrimination in employment on the basis of disability, race and colour. The applicant was employed as a police officer by the corporate respondent. Mr. Kreling was the Chair of the Ottawa Police Services Board at the material times.

3The allegation made against Mr. Kreling is set out in paragraph 11 of the human rights complaint forming the subject matter of this Application:

On July 27, 2005 the Ottawa Police Services Board accepted the recommendation of the Chief of Police of the Ottawa Police Service that my employment be terminated as a police constable. I was advised by Herbert H. Kreling, Chair of the Police Services Board that my service was terminated as a result of the three incidents where I suffered from alcohol induced amnesia on the basis that "through your conduct, you have demonstrated yourself to be unsuitable to hold the position of police officer".

4The principles that Tribunal has considered when dealing with this issue have been set out in Persaud v. Toronto District School Board, 2008 HRTO 31:

Pursuant to Rule 14(b) of the Tribunal's Rules of Practice, the Tribunal has the power to "add or remove a party". In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal's discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, HRTO 14 at para 42:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

5The applicant states that there are compelling reasons to not remove this respondent. The applicant states that the conduct of Mr. Kreling is central to the failure of the respondents to accommodate his disability. The applicant also states that, while he does accept that the Ottawa Police Service is vicariously liable for the actions of Mr. Kreling, the obverse does not hold, that Mr. Kreling is therefore immune from liability because there is a corporate respondent that is potentially responsible.

6Considering Persaud, I find that the most just, fair and expeditious resolution of the merits of this Application requires the removal of the respondent Kreling from the Application. I note that while Mr. Kreling was the Chair of the Ottawa Police Services Board, he was one of several members of that Board. None of the other members of the Board have been named as respondents. Based on the pleading, Mr. Kreling's role is limited to the his institutional responsibilities as Chair and spokesperson for the Board communicating its decision to accept the recommendation of the Ottawa Police Service by its Chief that the applicant's employment be terminated. It is not alleged that Mr. Kreling acted outside of that role. The decision was a corporate one taken by the Board and for which it will be responsible. There is no issue that the corporate respondent is liable for the decisions that were made or that it is in a position to remedy any violations of the Code that might be found. There is no indication that any party would be prejudiced if Mr. Kreling is not a party to the Application. On the other hand the participation of another party to the proceeding will add to the complexity of the proceeding leading to further delay in the resolution of the dispute between the parties which began in the spring and summer of 2005.

7For all of these reasons Herbert Kreling is removed as a respondent from this Application and the style of cause is amended accordingly.

8I am not seized of these matters.