Pando v. Colleges of Applied Arts and Technology Pension Plan, 2009 HRTO 2263

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Pando Applicant

-and-

Colleges of Applied Arts and Technology Pension Plan Respondent

AND BETWEEN:

Robert Pando Applicant

-and-

Colleges of Applied Arts and Technology Pension Plan Respondent

INTERIM DECISION

Adjudicator: Kathleen Martin Date: December 24, 2009 Citation: 2009 HRTO 2263 Indexed as: Pando v. Colleges of Applied Arts and Technology Pension Plan

1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). Tribunal File 2009-01513-I ("the section 34 Application") is an Application filed on February 27, 2009 under section 34 of Part IV of the Code. Tribunal File T-0199-08 ("the transition Application") is an Application arising from a complaint originally filed with the Ontario Human Rights Commission ("Commission"). In each Application, the respondents have requested that the individual respondents be removed as parties to the proceeding.

2By Interim Decision dated July 31, 2009, it was decided that the Applications would be heard together. In addition, the Tribunal provided the parties with an opportunity to file further submissions on the respondents' request to remove the three named individual respondents as parties to these Applications.

3The applicant and respondents filed further submissions on the request to remove the named individual respondents. This Interim Decision addresses that request.

BACKGROUND

4The applicant is a former employee of Mohawk College and receives a pension from the Colleges of Applied Arts and Technology Pension Plan (the "Plan"). The Applications allege discrimination on the basis of disability arising from the applicant's attempts to exercise his right to inspect certain documents maintained by the Plan pursuant to s. 29 of the Pension Benefits Act, R.S.O. 1990, c. P.8, as amended, in 2007 (the transition Application) and 2008 (the section 34 Application). At the material times, Phil Cunnington was the chair of the Board of Trustees that administers the Plan; Paul Owens was the chief executive officer of the Plan; and Daniel Hayhurst was outside legal counsel to the Plan and a partner at a law firm in Toronto.

5The transition Application states that in November 2007, the applicant requested three consecutive days to inspect the records (in part because of his "personal health disabilities"). The applicant alleges that the Plan ignored his request and instead improperly asked for information about the nature and extent of his disabilities before it would consider what accommodation would be reasonably required. While the applicant identified the three named individual respondents, there is no express reference to any of the named individual respondents in the narrative provided in the complaint.

6On February 27, 2009, the applicant filed the section 34 Application arising out of his attempt to inspect pension records in November 2008. In the accompanying narrative to this Application, the applicant alleges that he has been discriminated against on the basis of disability as a result of, among other things, the respondents' refusal to provide him with two consecutive days (initially the request was that the inspection take place at Mohawk College, subsequently he requested Niagara College in Welland to accommodate certain specified disabilities). The applicant states that he addressed his request to inspect records to Mr. Cunnington as chair of the Plan's Board of Trustees and that the letter was sent via the email address of Mr. Owens, who is described as being responsible for the day to day operations of the Plan. The responses to some of the applicant's requests are authored by Mr. Hayhurst, counsel for the Plan.

7In addition to alleging discrimination based on disability in the section 34 Application, the applicant alleges that he suffered reprisal because the respondents refused to accommodate him because he sought to defend his rights under the Code through the transition Application.

8The applicant seeks similar remedies in each Application including damages; entitlement to withdraw from the Plan and transfer the commuted value of his pension to a financial institution of his choosing; development of a human rights policy for the Plan; training of persons "associated" with the Plan; and a public apology. The applicant seeks that the damages be paid "individually and/or collectively" and does not otherwise distinguish among the respondents in his remedial requests.

9In the Responses to each Application, the respondents deny any breach of the Code. The respondents submit that the allegations are part of the applicant's ongoing campaign to achieve a collateral purpose which includes his withdrawal from the Plan. The respondents frame their responses to the particular allegations made as decisions of the Plan as opposed to the individuals named. In respect of 2007 inspection, the respondents state that the Plan considered the request but determined that the absence of particulars of the nature or extent of his personal health related issues made it unable to determine what, if any, accommodation may be reasonably required. In respect of the 2008 inspection, the respondents state that the applicant did not identify any disability as a ground for his request to inspect documents for two days and that he only did so upon being advised that his request would not be granted. Subsequently, the respondents state that they in fact accommodated the applicant although they did so on a without prejudice basis so that they could respond completely to the Application before the Tribunal (as well as the matter then proceeding before the Financial Services Tribunal).

10From the time of the initial Response to the transition Application, the respondents have argued that all of the individual respondents should be removed as parties to the Application. The respondents rely on the decision of the Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31. In Persuad, the Tribunal set out the following non-exhaustive list of factors that may be helpful in assessing whether a personal/individual 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? .

11The respondents argue that all of these factors favour removal of the individual respondents. In particular, the Plan is alleged to be liable for the same conduct as the individual respondents and the allegations against the Plan and individual respondents are identical. In addition, the respondents argue that the Plan will be vicariously liable for any violations found as the individual respondents were either employees, agents or outside legal counsel of the organizational respondent. The respondents also submit that the removal of the individual respondents will not prejudice the applicant in any way as the Plan will be able to remedy any alleged Code infringement. In addressing the fourth factor, the respondents submit that the allegations do not relate to any individual respondent's conduct distinct and independent from the Plan and to the extent they were involved, their dealings with the applicant were performed solely in their capacities as employee/agent/legal representative of the Plan.

12The applicant objects to the request that the individual respondents be removed. Some of his submissions have been answered by the respondents to the extent they acknowledge that the Plan is the organization respondent that is responsible for the actions of the individuals named. However, the applicant also submits that the conduct of the individual respondents is a central issue and the Tribunal "may" determine that it is appropriate to award a remedy specifically against them.

DECISION

13Based on a review of the material filed and having regard to the considerations described in Persuad and other decisions of the Tribunal, I am satisfied that the individual respondents should be removed from this proceeding.

14It is apparent that the Plan is alleged to be liable for the same conduct and the respondent Plan has accepted deemed or vicarious liability for the conduct of the individual respondents on the basis that they are an employee/agent/counsel of the Plan. While the respondents do not expressly state that counsel is an agent of the Plan I am satisfied that a counsel acting on behalf of a corporate or organizational entity would qualify in this regard. Further, there is no suggestion that any of the individual respondents were not acting in the course of their employment or as agent of the Plan and the Plan has indicated that it is capable of remedying any infringement of the Code if liability is established.

15I am also satisfied that there is not a compelling reason to continue the proceeding as against the individual respondents. Based on the material filed, it is not apparent that the role of any of the individual respondents by themselves was central in the decision making process – for example, none were specifically named in the initial Application and their involvement which was subsequently clarified in the Reply and in the section 34 Application appears to be premised on the applicant's decision to address his request for inspection to the particular individuals involved and his articulation of their role in the organization respondent. In any event, even to the extent the individuals may have been involved. I accept that their actions were taken in their capacity as employee/agent/counsel to the Plan and that there is no issue with respect to the Plan's deemed or vicarious liability.

16Further, there is no distinction drawn between the remedies requested of the individual respondents as opposed to those requested of the Plan. While the applicant has suggested that the Tribunal "may" want to award a remedy against the individual respondents, I do not find that the Tribunal would be inclined to make such an order particularly given the Plan's position that it is responsible for and able to remedy any infringement found. I therefore find no compelling reason to continue this proceeding against the individual respondents and no prejudice to the applicant in removing them as parties.

17Finally, with respect to Mr. Hayhurst, I note that there may be an additional reason justifying his removal as a party. While the materials suggest that Mr. Hayhurst was the author of various letters sent to the applicant, as acknowledged by the applicant, Mr. Hayhurst wrote these letters as counsel retained to act "on behalf of the Plan". In a litigation context, the Tribunal has indicated that lawyers are obliged to act in the interests of and on instructions of their clients and that therefore a counsel's representation of a party is not covered by the Code (See, for example, Humphries v. General Electric of Canada, 2009 HRTO 1869). However, having regard to my finding above, I do not find it necessary to finally determine this issue in this context.

18In the circumstances, the Tribunal grants the request to remove the individual respondents, and the style of cause is amended accordingly.

19I am not seized of this matter.