HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Farid Bourennani
Applicant
-and-
Kelly Services
Respondent
A N D B E T W E E N:
Farid Bourennani
Applicant
-and-
IBM Canada Limited
Respondent
INTERIM DECISION
Adjudicator: Kaye Joachim
Date: December 23, 2009
Citation: 2009 HRTO 2240
Indexed as: Bourennani v. Kelly Services
[1] This Interim Decision deals with a Request for Order During Proceedings seeking the removal of a personal respondent named in these Applications.
[2] The applicant alleges that his employment assignment at IBM Canada Limited (“IBM Canada”) was terminated by his employer, Kelly Services, as a result of an absence due to disability. Kelly Services asserts that the applicant was terminated for work performance issues. The applicant also names John Pangindian, an employee of Kelly Services, on both Applications. IBM Canada asserts that John Pangindian has never been employed by it and also that the applicant did not have an employment relationship with the respondent, as he was an employee of Kelly Services.
[3] The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, [2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31), at paras [4-5](https://www.minicounsel.ca/hrto/2008/31):
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, 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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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.
[4] Mr. Pangindian is an employee of Kelly Services and not IBM Canada, and therefore should be removed from the Application against IBM Canada. Further, Mr. Pangindian was acting in the course of his employment in making the decision to terminate the applicant’s employment and Kelly Services is vicariously liable for his actions. In these circumstances, Mr. Pangindian is removed as a respondent from these proceedings and the style of cause is amended accordingly.
Dated at Toronto, this 23rd day of December, 2009.
“Signed by”
Kaye Joachim
Alternate Chair