Stangret v. Cadillac Fairview, 2010 HRTO 1100

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerrald Stangret Applicant

-and-

The Cadillac Fairview Corporation Limited Respondent

AND B E T W E E N:

Gerrald Stangret Applicant

-and-

Best Buy Canada Ltd. and Brian Hope Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim Date: May 18, 2010 Citation: 2010 HRTO 1100 Indexed as: Stangret v. Cadillac Fairview

1This Application was filed June 29, 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 removal of a personal respondent and the corporate respondent in TR-0748-09 (the “Cadillac Fairview” application).

Removal of a Personal Respondent

2The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5 in deciding whether to remove personal respondents from a proceeding:

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.

3The personal respondent, Rachael Jensen is not mentioned in the original complaint nor was she employed by Cadillac Fairview at the time of the events. There is no basis for maintaining her as a personal respondent and she is removed from the style of cause.

Dismissal of Application

4Cadillac Fairview also seeks an Order dismissing the Application against them on the basis that the applicant has not set out a prima facie case of discrimination.

5The events giving rise to the complaint occurred on November 20, 2007. The applicant was present in the Best Buy Store at the Toronto Eaton Centre. The applicant was asked to leave the premises of Best Buy and security personnel employed by Cadillac Fairview were notified. They escorted the applicant from the Best Buy Store and issued applicant a Mall Bar Notice for causing a disruption and failing to leave when instructed.

6The applicant alleges that he was discriminated against by Best Buy and Brian Hope in Application TR-0752-09. He also filed a complaint against Cadillac Fairview (TR-0748-09). The applicant asserts that he was treated differentially because of his colour (White) and because he is old and disabled. Cadillac Fairview asserts he was escorted from the mall and issued the notice because of his actions and not because of a prohibited ground.

7The Hearing in this matter is scheduled for June 2, 2010. In my view, the issue whether the applicant can or has established a prima facie case of discrimination is best dealt with at the Hearing.