Latronico v. York Region District School Board, 2009 HRTO 1803

Human Rights Tribunal of Ontario

B E T W E E N:

Vincenzo Latronico Applicant

-and-

York Region District School Board, Isagamni Paz, David Lutz, Dan Hunter, John Botts, Debbie Carson, Mary Cromwell and Peter Watterson Respondents

AND B E T W E E N:

Vincenzo Latronico Applicant

-and-

Canadian Union of Public Employees, Local 1196, John Botts, Debbie Carson, Mary Cromwell, Peter Watterson, Dan Morgan and Rene Bissonnette Respondents

interim decision

Adjudicator: Kaye Joachim Date: October 28, 2009 Citation: 2009 HRTO 1803 Indexed as: Latronico v. York Region District School Board

Interim Decision

1These Applications were received in May 2009. The respondents in TR-0354-09 will be referred to as the Employer respondents and the respondents in TR-0297-09 will be referred to as the Union respondents. This Interim Decision addresses the Employer respondents’ Request for an Order removing the personal respondents and restricting the subject matter of the Application.

Scope of the Employer Application

2The complaint filed with the Ontario Human Rights Commission on April 4, 2007 against the Employer respondents alleged discrimination in employment on the basis of sex, ancestry, color, ethnic origin, place of origin, race and sexual solicitation. The applicant was hired as a probationary caretaker in July 2006. He alleges that the personal respondent, Isagamni Paz made a sexual advance towards him in July and August which was refused. This allegedly led Mr. Paz to criticize the applicant’s work and threaten to give him a negative appraisal. He also alleges that Mr. Paz called him derogatory names and threatened him with a knife. He also alleged that Dan Hunter and David Lutz bullied him and that Laird Underwood made comments about Italian flags waving during the World Cup.

3The applicant’s employment was terminated October 27, 2006.

4The transitional provisions of the Code provide that applications under s. 53(5) may brought with respect to the subject-matter of the original complaint.

5When the applicant filed the Employer Application, he added extensive additions to the original complaint. Some of these additions provide additional details about the allegations set out in the original complaint and are properly characterized as further particulars. They do not alter the subject matter of the original complaint and will not be struck.

6However, some of the additions allege new facts against new persons not referenced in the original complaint. The following allegations do not form part of the subject matter of the Employer Application:

• The allegations against Billy Mitrakos, Craig Smith, Jeffrey Hartung, Peter Karaoulis, Nancy Massie, and Rosemary McCarthy;
• The February to July 2006 allegations against Mr. Underwood;
• The February to July 2006 allegations against Mr. McBean.

7Any allegations after October 27, 2006 also do not form part of the Application against the Employer respondents.

Removal of Personal Respondents

8The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras 4-5:

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.

9Having regard to the above principles, I find that it is appropriate to remove Laird Underwood, Jude Carberry, and Kevin McBean as respondents to the Employer Application, on the basis that the corporate respondent is vicariously liable for their actions and there is no necessity to retain them as parties to ensure a fair, just and expeditious resolution of the Employer Application. The style of cause is amended accordingly.

10As the allegations against Mr. Paz, Mr. Hunter, and Mr. Lutz involve allegations of personal harassment, it may be appropriate to award a remedy specifically against them if an infringement is found. Accordingly, I decline to remove them as personal respondents.

11The following persons are not currently named as respondents and may not be added to the Employer Application: Craig Smith, Jeffrey Hartung, Nancy Massie, Rosemary McCarthy, Bill Mitrakos or Yiouroukis, and Peter Karaoulis.

12The parties have expressed an interest in mediation. The Tribunal will send a Notice of Mediation in due course.