McIntyre v. Ontario Teachers’ Pension Plan Board, 2009 HRTO 1977

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gilbert McIntyre

Applicant

-and-

Ontario Teachers’ Pension Plan Board

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang

Date: November 20, 2009

Citation: 2009 HRTO 1977

Indexed as: McIntyre v. Ontario Teachers’ Pension Plan Board

1This is an Application filed on April 15, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The applicant is a retired teacher and a member of the Ontario Teachers’ Pension Plan, a defined benefit pension plan administered by the respondent the Ontario Teachers’ Pension Plan Board (the OTPP).

3The applicant alleges that he was discriminated against on the basis of his race, colour, ethnic origin and age when he was forcibly evicted from the offices of the OTPP by security guards. The Application describes what occurred when he attended at the OTPP offices, culminating when the personal respondent, who is the Director of Client Services for the OTPP, requested the assistance of security officers to escort the applicant out of the building. The applicant self-identifies as African Canadian. Although the Application focuses on this incident, the applicant states that he attended at the OTPP offices as a result of an ongoing dispute over repayment and deductions from his pension which he states remains unresolved. In this Application, he appears to suggest that as a retired teacher and without union representation, he is being taken advantage of because of his age.

4The respondents state that there have been ongoing discussions and communications with the applicant about his pension. They submit that under the rules of the Plan, the applicant is obliged to make re-payments of pension income paid during a period of time when he was employed. On the day in question, August 15, 2008, the applicant came to the offices of the OTPP. The respondents state that the applicant was unwilling to accept explanations given by the personal respondent about a debt reduction payment, and became confrontational. As a result of the applicant’s refusal to leave the premises, building security was called to escort the applicant out of the building. The respondents deny that the applicant was treated in a discriminatory manner, either on that day or at any other time.

5The parties attended mediation, but did not resolve the Application. The Application is now scheduled for hearing in March 2010.

6The respondents have filed a Request for an Order During Proceedings, asking that the personal respondent be removed as a party to the Application. The respondents rely on the decision of the Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31, setting out the following non-exhaustive list of factors that 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 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?

7The respondents submit that all of these factors favour removal of the personal respondent. In particular, the personal respondent was acting in the scope of his employment, and the OTPP will be vicariously liable for and is able to remedy any alleged Code infringement. The respondents submit that the personal respondent would be significantly prejudiced if the case were allowed to proceed against him as he would be forced to incur costs associated with defending the Application and would continue to suffer the emotional distress associated with being named a respondent.

8Referring to the fourth factor listed above, the respondents also submit that although the applicant has made allegations against the personal respondent, none of them amount to an infringement of the Code.

9The applicant objects to the Request, focusing on the actions of the personal respondent on August 15, 2008.

DECISION

10Having regard to the considerations described in Persaud and other decisions of the Tribunal, the Tribunal finds it appropriate to remove the personal respondent. There is no suggestion that he was not acting in the course of his employment. The organizational respondent has accepted vicarious liability for the actions of the personal respondent and I am satisfied that it is capable of remedying any infringement of the Code if liability is established.

11It may be said that the actions of the personal respondent will be a central issue in the Application, but this is true of many Applications in which responsibility ultimately rests with an organizational respondent. Decisions or actions taken by organizational respondents are necessarily effected through individual employees or officers, acting in the course of their employment. Although the incident of August 15, 2008 is the key event giving rise to this Application, that encounter arose out of an ongoing disagreement over the application of the rules of a pension plan and the applicant’s dealings with his plan. The actions of the personal respondent were taken in his capacity as an employee of the plan, within the context of that ongoing disagreement.

12I note that the only remedy requested by the applicant is monetary compensation. The allegations against the personal respondent are not of a nature that would likely lead to an order of monetary compensation against the personal respondent, even if an infringement is found. I therefore find no compelling reason to continue this proceeding against the personal respondent, and no prejudice to the applicant in removing him as a party.

13In the circumstances, the Tribunal grants the Request to remove the personal respondent, and the style of cause is amended accordingly.

14I am not seized of this matter.