Thompson v. Liquor Control Board of Ontario, 2009 HRTO 1457

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lee Thompson

Applicant

-and-

Liquor Control Board of Ontario and the Ontario Public Service Employees Union

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: September 11, 2009 Citation: 2009 HRTO 1457 Indexed as: Thompson v. Liquor Control Board of Ontario

1In this Application made under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), the applicant alleges discrimination in employment on the basis of race, colour, ancestry, disability, and family status as well as reprisal. This Interim Decision will address requests for removal of the personal respondents to the Application, the dismissal of part of the Application and the deferral of the Application.

2The applicant self-identifies as a Black male. He is an employee with the Liquor Control Board of Ontario (the "LCBO" or "corporate respondent"). He has been an employee since 1993 and is currently a full-time Customer Service Representative. He has been working in various LCBO retail outlets in the greater Toronto area. The applicant's concerns principally focus on his efforts to be transferred to an LCBO location in Brampton.

Request to Remove Personal Respondents

3The LCBO and the three named personal respondents, Bonnie McPhail, Scott Tranton, and Yolanda Watson, all of whom are employees of the LCBO, have made a joint Request for an Order during Proceedings to have the personal respondents removed as parties to the Application. The other named respondent, the Ontario Public Service Employees Union (the "Union"), is not a party to the request nor has it responded to the request.

4The LCBO and the personal respondents submit that the personal respondents are not necessary or proper parties to the application as the applicant has not alleged that any of the individual respondents have violated his rights or engaged in discrimination, harassment or reprisal contrary to the Code. Furthermore, the respondents argue that the applicant has not asserted a remedy against the personal respondents and these respondents were, at all material times, acting within the proper scope of their duties as employees of the LCBO. The respondents maintain that the only proper and necessary parties to the Application are the corporate respondent and the Union.

5The applicant opposes this request. In his Response to the request he states that while the personal respondents may have been acting in the scope of their duties as employees of the LCBO, their conduct was discriminatory, malicious and vexatious. The applicant maintains they were responsible for decisions that the applicant believes to be discriminatory. He further asserts that these respondents have treated him differently because of his past human rights complaints and grievances as well as his colour, race and family status.

6Rule 1.7(b) of the Tribunal's Rules affirms the Tribunal's power to "add or remove a party". In assessing the respondents' request, I have adopted the principles and considered the key factors for removing personal respondents that were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras. 4-5:

As stated in Sigrist and Carson v. London District Catholic School Board, 2008 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?

7I am satisfied that the applicant's complaint, as articulated in his Application, focuses on the conduct of his employer, the LCBO. The applicant repeatedly refers to the actions of the LCBO or his "employer" when outlining his extensive allegations. I do not find that the individual conduct of the personal respondents is central to the applicant's allegations. Indeed, the personal respondents are only briefly referred to in the Application. Ms. Wilson, a human rights manager, is mentioned once. Mr. Tranton, a district manager, is mentioned in respect to one incident that is not related to the applicant's principal allegations regarding his transfer. It is not even clear that Mr. Tranton's actions are being alleged to be discriminatory. There is no mention at all of Ms. McPhail, a human resources advisor. The actions of the personal respondents, as briefly described, also appear to be within the scope of their duties as employees.

8I am also satisfied, based on the respondents' submissions, that the corporate respondent is prepared to accept liability, including vicarious liability on behalf of the individual respondents, and that the corporate respondent would be prepared to remedy any Code violation should the Tribunal find in favour of the applicant.

9Furthermore, the applicant has not asserted that there would be any prejudice to him if the personal respondents were to be removed.

10I find that each of the five factors identified in Persaud for assessing whether to remove a personal respondent favours the respondents' request.

11The applicant has stated that the conduct of the personal respondents has been malicious and vexatious, arguing that this would be reason for them to remain named respondents. However, the applicant has provided no persuasive arguments or information to support these claims.

12For these reasons the three personal respondents will be removed and the Application will proceed only against the LCBO and the Union. The title of the proceeding will be amended to reflect the change in respondents.

Request to Dismiss

13The LCBO's Response seeks to have part of the Application dismissed. The Response asks that all of the applicant's allegations of discrimination up to and including July 10, 2006, be dismissed on the grounds that on that date the applicant freely and voluntarily agreed to minutes of settlement and a full and final release with respect to the substance of the Application for the time period up to and including July 10, 2006. According to the Response, the minutes of settlement resolved a number of grievances that were filed by the applicant alleging the same human rights violations as raised in the Application. The Response further argues that the allegations related to events occurring in the time period up to and including July 10, 2006, should be dismissed because the applicant did not file an Application regarding these events within the one-year time limit set out in the Code.

14The Union also identifies in its Response the fact that minutes of settlement were signed by the applicant, the Union and the LCBO in order to resolve 10 grievances and that these minutes constituted a complete and final settlement of the issues in dispute.

15The applicant states in his reply to this request that his Application should not be dismissed because there are new issues that have not been dealt with by his grievances.

16Section 45.1 of the Code, reinforced by the Tribunal's Rules of Procedure, allows the Tribunal to dismiss an application in whole or in part where another proceeding has appropriately dealt with the substance of the application.

17The Tribunal already has substantial written submissions from the LCBO in regards to the request to dismiss as well as relevant written materials from the Union. The applicant indicates that he is opposed to the dismissal of his Application citing that there are new issues, but it is not clear that he is opposed to the request to dismiss his Application in part, namely in relation to events prior to June 10, 2006.

18Given these circumstances the Tribunal will hear oral submissions from the parties by means of a teleconference that the Tribunal will arrange. The applicant should be prepared to proceed first during this teleconference by responding to the written arguments of the LCBO (particularly those contained in Schedule A of the Response). Any party that wishes to rely on further written materials or rely on any facts not contained in the Application, Responses or Replies must deliver them to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

Request to Defer

19The LCBO, in its Response, has also requested that the Tribunal defer consideration of the Application given that the applicant has filed a further grievance in relation to his request to be transferred to an LCBO store in Brampton. The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues.

20This further grievance is dated 09/01/08 (which the LCBO identifies to be January 8, 2009, and the Union identifies as September 1, 2008) and both the LCBO and the Union indicate that the grievance is waiting to be scheduled for a Stage 3 meeting. The Union does not take a position on the request to defer. The applicant has not specifically indicated his position on the deferral request but he does briefly refer to having new issues that have not been dealt with in the grievance.

21Given these circumstances the Tribunal will hear submissions from the parties on the request to defer during the planned teleconference. Again, the applicant should be prepared to proceed first during this teleconference by responding to the written arguments of the LCBO on its request to defer (particularly those in Schedule B paragraphs #79 to 83). Any party that wishes to rely on further written materials or rely on any facts not contained in the Application, Responses or Replies must deliver them to the other parties and file them with the Registrar within 21 days of the date of this Interim Decision.

22I am not seized of this matter.