HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Whillans
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Whillans v. Ontario (Community Safety and Correctional Services)
1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of age. This Interim Decision addresses a request for removal of the individual respondent to the Application.
2The Application arises out of the applicant’s application for employment with the Ministry of Community, Safety and Correctional Services (the “Ministry”). In March 2009, the respondent Ministry held a job competition for two permanent positions for the position of Program Effectiveness Analyst. There were 110 applicants for the position including the applicant in this Application. From this pool of applicants, 15 were selected to complete an assignment as part of the screening process, one of whom was the applicant. While the applicant completed the assignment, he was not selected for an interview. The applicant alleges that he was not selected for an interview because “they made discriminatory assumptions based upon my age”.
3The Application was filed against the Ministry along with Dr. Lina Guzzo. Dr. Guzzo is the Acting Manager of the area where the positions are housed and was responsible for the screening of resumes and the scoring of the assignments.
4The Ministry and Dr. Guzzo filed a joint Response denying any violation of the Code. Among other things, the respondents state that age information was not available to Dr. Guzzo when reviewing the assignments and selecting candidates for an interview.
5On August 7, 2009, the respondents made a joint Request for an Order during Proceedings to have Dr. Guzzo removed as a party to the Application and an amendment of the title of proceeding. In their Request, the respondents provide detailed submissions in support of their Request based on the Tribunal’s Rules and the applicable caselaw.
6The applicant has not responded to the Request and the time for doing so has elapsed.
DECISION
7Rule 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 considered the list of factors that were identified in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras. 4-5 regarding whether or not an individual respondent should be removed. Further, I have considered the Tribunal’s recent restatement of the test for adding a respondent in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para 12.
8I am satisfied that the individual respondent should be removed from this proceeding. There is no issue with respect to the Ministry’s deemed or vicarious liability for the conduct of the individual respondent. There is also no issue with respect to the Ministry’s ability to respond to and remedy the alleged violation of the Code. Further, there does not appear to be a compelling reason for the individual respondent to remain as a party. While the individual respondent was responsible for selecting candidates for interview, apart from the assertion that discriminatory assumptions were made, there is no suggestion that the individual respondent was acting outside the course of her employment or conducted herself in such a manner that it would be appropriate to award a remedy specifically against her. Finally, there is no basis to conclude that there would be any prejudice to any party as a result of removing the individual respondent.
9The Tribunal therefore orders that the individual respondent be removed as a party and the style of cause is amended accordingly.
10As the parties have agreed to mediation, the Registrar is asked to set the matter down for mediation.
11I am not seized of this matter.
Dated at Toronto, this 15th day of October, 2009.
“Signed by”
Kathleen Martin
Vice-chair