Tomina v. IQT Solutions, 2010 HRTO 1152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jeanine Tomina

Applicant

-and-

IQT Solutions

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: May 20, 2010

Citation: 2010 HRTO 1152

Indexed as: Tomina v. IQT Solutions

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), on May 22, 2009 alleging discrimination on the basis of disability and reprisal in employment. On January 29, 2010, the Tribunal issued a Confirmation of Hearing notice (the “notice”) which scheduled the hearing of the Application for June 1, 2010.

2On April 30, 2010, the respondents filed a Request for Order During Proceedings (“RFOP”) seeking the early dismissal of the Application because another proceeding before the Employment Insurance Board of Referees (the “EIBR”) has appropriately dealt with the matter. The respondents provided the Tribunal with a copy of the EIBR decision. The respondents also requested an order that the personal respondent, Christopher Beattie, be removed as a party to this Application.

3The applicant has not filed a Response to the RFOP and the time for doing so has now passed.

Section 45.1

4Section 45.1 of the Code provides:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

5Section 43(2) of the Code provides that the Tribunal shall not finally dispose of an application without affording the parties a chance to make oral submissions.

6The June 1, 2010 hearing date shall be used to hear the parties’ submissions on whether the Application should be dismissed, pursuant to section 45.1, as a result of the decision from the EIBR. The parties should consider the Tribunal’s caselaw on section 45.1, which is found at www.canlii.org, including, but not limited to, Qiu v. Neilson, 2009 HRTO 2187, S.D. v. Children’s Aid Society of Toronto, 2009 HRTO 2196, Caldeira v. 2068006 Ontario, 2010 HRTO 921, and Islam v. Ball, 2009 HRTO 2164.

Removing Christopher Beattie as a Personal Respondent

7Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined a “non-exhaustive list of factors” that may be helpful in assessing whether a personal respondent should be removed including:

1. Is there 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 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?

8The respondent has addressed the factors outlined above. They argue that Mr. Beattie was at all time acting in his capacity as an employee of the corporate respondent, which is alleged to be liable for the applicant’s Application. There is no issue regarding the ability of the corporate respondent to respond or to remedy the alleged Code infringement. Mr. Beattie did not make the final decision to terminate, and was not ultimately responsible for issuing disciplinary measures to the applicant. The corporate respondent states that should the Tribunal find that Mr. Beattie violated the applicant’s human rights, there is no dispute it (the corporate respondent) would be held responsible for any damages flowing from such an alleged violation.

9On my review of the submissions and the material before me I am satisfied that the personal respondent should be removed from this proceeding and the title of proceedings be amended accordingly.