Hannah v. ArcelorMittal Dofasco Inc., 2010 HRTO 109

Human Rights Tribunal of Ontario

B E T W E E N:

Rob Hannah

Applicant

-and-

ArcelorMittal Dofasco Inc. and John Thomas Cartage Limited

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 18, 2010

Citation: 2010 HRTO 109

Indexed as: Hannah v. ArcelorMittal Dofasco

1This Application was filed May 25, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a Request for Order during Proceedings seeking the addition of John Thomas Cartage Limited (“Thomas Cartage”) as a respondent to the Application and to remove the respondents ArcelorMittal Dofasco Inc. (“Dofasco”) and Norm Stephens.

Request to add Thomas Cartage and remove Dofasco

2The applicant filed a complaint with the Ontario Human Rights Commission against Dofasco and Norm Stephens, Supervisor with Dofasco on October 13, 2006 arising from his lay-off. He was advised of his lay-off by Gary Bresnahan, an employee of Thomas Cartage. The applicant alleges that his lay-off and the failure to recall him were due to his absences required because of migraines.

3Dofasco alleges that the applicant was an employee of Thomas Cartage and that Thomas Cartage made all decisions relating to the applicant’s employment. Thomas Cartage alleges that Dofasco and Thomas Cartage were effectively “co-employers.”

4The Tribunal has held that it may exercise its discretion to add a party when the alleged facts, if proven, could lead to a finding that the proposed respondent infringed the applicant’s rights under the Code; when the proposed respondent would not suffer real and substantial prejudice if added as a party to the proceeding, and when it would be fair, in all the circumstances to add the proposed respondents: Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

5In this case, it appears that there are facts alleged that could lead to a finding that either or both of Dofasco and Thomas Cartage breached the applicant’s rights under the Code.

6Thomas Cartage did not assert any prejudice that has arisen from the passage of time that would impair its ability to respond to the Application.

7I find that this is an appropriate case to exercise my discretion to add Thomas Cartage as a respondent to these proceedings. It would not be appropriate to remove Dofasco at this stage in light of Thomas Cartage’s assertion that they were co-employers.

Removal of Norm Stephens

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.

9There is no dispute that Mr. Stephens is an employee of Dofasco and that he was acting the course of his employment with respect to any alleged actions concerning the applicant. Dofasco has accepted that it is liable for any of the conduct of its employees that may be found to violate the Code and there is no issue as the corporate respondent’s ability to provide a remedy. In these circumstances, I do not see a compelling reason to continue this Application against Norm Stephens and he is removed from the style of cause.

Case Management

10This Application is scheduled for a hearing on March 24, 2010. Thomas Cartage shall file a statement of additional facts, response to remedy and make disclosure of relevant documents within 21 days of the date of this Interim Decision.

11The other parties shall file any responding material within 14 days of the date of receiving Thomas Cartage’s material.

12All parties shall file a list of witnesses and a description of what each witness will say, and file all documents they intend to rely upon, by March 3, 2010.