Kamel Boukort v. Securitas Canada Ltd., 2009 HRTO 890

Human Rights Tribunal of Ontario

B E T W E E N:

Kamel Boukort

Applicant

-and-

Securitas Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: June 22, 2009

Citation: 2009 HRTO 890

Indexed as: Boukort v. Securitas Canada

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the grounds of race, ancestry, place of origin, citizenship, creed, sex, sexual solicitation, sexual orientation, family status, marital status, age and reprisal. A hearing in this matter is scheduled for July 3, 2009, in Ottawa. The purpose of this Interim Decision is to address a Request for Order During Proceeding filed by the respondents, and to provide procedural directions in preparation for the hearing.

2The essence of this Application is a claim that the applicant was refused employment as a security guard, and that the respondent Securitas Canada Ltd. ("Securitas") withheld the applicant's security guard licence after the Province had issued the licence through Securitas. The applicant also alleges that he was sexually harassed and was subjected to sexual solicitation by Securitas' recruiting officer.

3The respondents deny the allegations that they violated the applicant's rights. They state that the applicant was not subjected to sexual harassment or solicitation, and his licence was not retained. They state that the applicant was not hired because of inappropriate and unprofessional conduct.

Request For Order During Proceeding

4The respondents filed a Request for Order during Proceeding seeking the removal of Pierre Belair, Securitas' District Manager, as a personal respondent. The respondents argue that Mr. Belair's interaction with the applicant (which is essentially his investigation of the applicant's allegations of harassment and unfair treatment) was wholly within the normal course of his employment. While the respondents deny that they have in any way violated the rights of the applicant under the Code, Securitas states that it will accept liability for any of the actions of Mr. Belair, should the Tribunal find in favour of the applicant.

5In his Response to the Request for Order, the applicant says only that he believes Mr. Belair has violated his rights under the Code. He states that Mr. Belair has managerial authority but does not explain why, in the circumstances, it is proper or necessary to have Mr. Belair as a personal respondent. The applicant states that "The Tribunal knows that Belair Securitas respondent is already guilty and convicted" (sic).

6The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent decisions of the Tribunal. (See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14; Persaud v. Toronto District School Board, 2008 HRTO 31; Winter v. Arnprior (Town), 2009 HRTO 713. The issue arises either where an applicant seeks to add an individual as a personal respondent, or where, as here, a respondent seeks to have an individual removed as a personal respondent. In both cases, the criteria the Tribunal will consider are the same.

7In Sigrist the Tribunal set out the general approach to this issue, stating as follows 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.

8In Persaud, the Tribunal expanded on these principles as follows, at para. 5:

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:

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.

9In my view there is no reason why Mr. Belair should be a personal respondent in this matter. There is no dispute that all the actions of Mr. Belair alleged in the Application are actions that fall within the normal course of his employment. The respondent has stated that it will accept liability for any of Mr. Belair's actions. There is no prejudice to the applicant if Mr. Belair is removed, and the applicant has provided no basis why Mr. Belair should not be removed as a personal respondent.

10As a result, I order that Pierre Belair be removed as a respondent in this matter and the style of cause is amended accordingly.

Other Matters

11As noted above, the applicant has alleged a number of grounds of discrimination. However, the facts set out in the Application provide no apparent basis for a finding of discrimination because of family status, marital status or age. Neither is there anything in the Reply or the documents filed which would support a finding of discrimination on those grounds. In other words, even if all the allegations in the materials filed by the applicant were found to be true, there does not appear to be any basis to find that the applicant was discriminated because of his family status, marital status or age. The applicant has not alleged any comments made by any employee or manager of the respondent which suggest that he was being treated differently, disadvantaged or subjected to ridicule because of his marital status, family status or age. Nor has the applicant alleged any facts which, even on a careful reading of the Application as a whole, would appear to lead to an inference that he was discriminated against or harassed on those grounds.

12As a result, at the commencement of the hearing, the applicant will be required to explain how the facts he has alleged support a finding that he was subjected to discrimination based on marital status, family status and age.

13The applicant also alleges that he was subjected to discrimination because of his sex, sexual orientation, and was subjected to sexual harassment and sexual solicitation. It appears that the basis for these claims are the allegations that the respondent's recruiting officer was sending him "psychological" messages that she was attracted to him. He also states that she wrote the number "2" on her business card. The applicant claims that this meant to suggest she wished to pursue a relationship. The applicant provides no other facts which relate to the claim that he was discriminated against because of sex, sexual orientation or was subjected to sexual harassment or solicitation.

14The applicant has not provided any particulars to explain what psychological messages the recruiting officer was sending, or what actions or comments made him believe psychological messages were being sent. In the circumstances, the applicant will be required to provide, in advance of the hearing, facts which he alleges support his claim that the recruiting officer was sending psychological signals that she wished to have a relationship with him.

Order of Proceeding and Witnesses

15The Application sets out a series of allegations suggesting the respondent refused to hire the applicant and withheld his security guard licence because the applicant is Muslim from Algeria. He alleges two occasions where he says employees made reference to him being an immigrant.

16The respondent has filed a complete Response, setting out in detail the history of interactions with the applicant, including the fact that the applicant was accepted into a security guard training program and was assisted by the respondent in obtaining his provincial security guard licence. The respondent also sets out a number of incidents of what it alleges to be inappropriate conduct and behaviour by the applicant which it says led to a decision not to offer the applicant employment. It also provides an explanation about the alleged withholding of the applicant's licence, stating it was unable to contact the applicant when the licence was received, because the applicant did not provide contact information.

17The Reply provided by the applicant alleges that the respondent is lying, but does not set out any facts which challenge the explanation offered by the respondent.

18In the particular circumstances of this case, it is my view that it would assist in the fair and expeditious determination of this Application to hear first from the individual who made the decision not to hire the applicant, and from the recruiting officer who is alleged to have withheld the applicant's licence and to have sexually harassed him. The applicant will have an opportunity to cross-examine these witnesses. The Tribunal will then hear evidence from the applicant, followed by cross-examination by the respondent.

19Once this evidence is received, the Tribunal will hear submissions from the parties about what other evidence they consider necessary for the fair determination of the application. Nothing above reverses the legal onus in this case.

20The parties should be prepared to complete the entire case in the one day scheduled.

Order

21Having regard to the above, I make the following orders.

a. Pierre Belair is removed as a respondent in this Application;

b. At the commencement of the hearing, the applicant must be prepared to explain how, even if all the facts he has alleged are accepted to be true, there is a basis for finding that he was discriminated against on the grounds of family status, marital status or age. The respondent should be prepared to make submissions on this issued if called upon to do so by the Tribunal.

c. No later than June 26, 2009, the applicant shall deliver to the respondent, and file with the Tribunal, a written statement setting out the facts he alleges support his claim that the recruiting officer was sending him psychological signals that she wished to engage in a relationship with him;

d. The parties should be prepared to proceed in accordance with the directions set out in paragraphs 18 and 19 above.

22The Tribunal reminds the parties that it does not have a general authority to review claims of unfair treatment in employment. The Tribunal's authority is limited to claims of discrimination and harassment in the specific grounds enumerated in the Code.

23The Tribunal may issue further case management directions.