HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tony Lagana
Applicant
-and-
Saputo Dairy Products Canada G.P. and
Rob Castellano
Respondents
AND B E T W E E N:
Tony Lagana
Applicant
-and-
Saputo Dairy Products Canada G.P. and
Rob Castellano
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Lagana v. Saputo Dairy Products Canada
1These are two Applications made under the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The purpose of this Interim Decision is to deal with a Request for an Order During Proceedings (the “Request”) made by the respondents to remove the personal respondents from both Applications and to amend both Applications to make Saputo Dairy Products Canada G.P. the sole respondent. Saputo Dairy Products Canada G.P is currently named as the corporate respondent in only one of the two Applications.
BACKGROUND
2Tribunal File TR-0419-09 (“the transition Application”) is a complaint originally filed by the applicant with the Ontario Human Rights Commission on November 19, 2007. This was brought before the Tribunal through an Application made under section 53(5) of the Code. The Application names Saputo Dairy Products Canada G.P. (originally wrongly named as Saputo Cheese Ltd.) as the corporate respondent and Rob Castellano, Pat Roehl and Frank Zbaraschuk as personal respondents. This Application alleges that Saputo Dairy Products Canada G.P. and three of its employees, Rob Castellano, Pat Roehl and Frank Zbaraschuk discriminated against the applicant on the basis of disability and age during his employment. The Application focuses on events that allegedly occurred during the period April 23, 2007 to October 30, 2007.
3Tribunal File 2008-00897-I (“the section 34 Application”) is an Application filed under section 34 of Part IV of the Code. This Application does not name a corporate respondent but rather four personal respondents, Rob Castellano, Pat Roehl and Frank Zbaraschuk and Dino Della Sbarba (the President and Chief Operating Officer of Saputo Dairy Products Canada G.P.). This Application alleges that the termination of the applicant’s employment on December 10, 2007 was in reprisal for the applicant having filed the human rights complaint which forms the basis of the transition Application.
4In an Interim Decision dated November 17 2009, 2009 HRTO 1943, the Tribunal ordered that these two Applications be heard together given their related nature.
5On December 1, 2009 a Request for an Order During Proceedings (the “Request”) was filed by counsel acting on behalf of all the respondents. The Request is for the personal respondents in both Applications to be removed as respondents. The Request also asks that the style of cause of both Applications be amended to make Saputo Dairy Products Canada G.P the sole respondent. The applicant has filed a response opposing this Request.
6Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. The 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 Tribunal decisions including Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31.
7In Sigrist the Tribunal set out the general approach to this issue, stating as follows (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 identified a list of factors to consider when determining whether a personal respondent should be removed (para. 5):
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
9The respondents submit that a consideration of all of the factors referred to in Persuad support the request to remove the personal respondents: the corporate respondent is prepared to accept any potential liability on behalf of the personal respondents; the corporate respondent can respond to and remedy the applicant’s complaints; there is no compelling reason to continue proceedings against the personal respondents; there is no prejudice to the applicant if the personal respondents are removed. The respondents further note that all the remedies being sought by the applicant are against the corporate respondent.
10The applicant submits that while the corporate respondent may be willing to accept liability and respond to and remedy the applicant’s complaints, the personal respondents should also be held accountable. The applicant alleges that Mr. Dello Sbarba, as president and chief operating officer of the corporate respondent, did not respond adequately to the applicant’s complaints that he knew of or ought to have known of. The applicant submits that Mr. Zbaraschuk, Ms. Roehl and Mr. Castellano were responsible for and participated in the applicant’s back to work plan. According to the applicant they were central figures in the harassment and discrimination of the applicant and should be personally held responsible for their conduct. As each of these respondents could be determined to be liable the applicant argues they could be personally subject to a remedy. The applicant further argues it would be prejudicial to him if the personal respondents are able to avoid accountability and liability for their actions and that it should be open to the adjudicator at the hearing to potentially determine that they are personally liable.
11I am satisfied, having considered the factors outlined in Persaud, that two of the three personal respondents named in the Transition Application, Pat Roehl and Frank Zbaraschuk, and all four personal respondents named in the Section 34 Application, Rob Castellano, Pat Roehl, Frank Zbaraschuk and Dino Della Sbarba, should be removed as personal respondents. Rob Castellano will not be removed as a respondent from the Transition Application.
12I am satisfied that the first three factors identified in Persaud favour the removal of the personal respondents. I accept the corporate respondent’s unchallenged assertion that it is willing and able to accept liability for the actions of the personal respondents and to provide whatever remedies the Tribunal might order.
13In considering the fourth and fifth factors identified in Persaud I accept that Pat Roehl, and Frank Zbaraschuk, are two human resources personnel who had some interaction with the applicant and who were involved in the decision to terminate the applicant’s employment. However, there is no information before me to suggest that these two might have acted independently or outside the course of their job responsibilities. I do not see that they would be personally held liable for their actions. I see no prejudice to the applicant in terms of proceeding with his Applications or receiving remedies if these two respondents were removed from both Applications.
14Similarly, there is no information to suggest that Dino Della Sbarba acted outside his job responsibilities or that his conduct was a central issue in the applicant’s allegations in the Section 34 Application. The applicant makes no mention whatsoever of Mr. Dino Della Sbarba’s role or conduct in his Application. I see no prejudice to the applicant if Dino Della Sbarba is removed as a respondent in the Section 34 Application.
15However, the applicant does make a number of very specific allegations in the Transition Application regarding Rob Castellano’s conduct. This Application focuses on how Rob Castellano allegedly treated the applicant including how he allegedly harassed the applicant on a repeated basis by making comments related to his physical limitations and age. As the allegations against Rob Castellano involve allegations of personal harassment it may be appropriate to award a remedy specifically against Rob Castellano if an infringement of the Code is found. Accordingly, I decline to remove him as a personal respondent in the Transition Application.
16However, I am prepared to remove Rob Castellano as a personal respondent in the Section 34 Application. The application’s allegations in the Section 34 Application are that he was terminated by the respondents [Rob Castellano, Pat Roehl and Frank Zbaraschuk and Dino Della Sbarba] for having filed his Transition Application. The Application only refers to the respondents collectively as the “respondents” and does not suggest that Mr. Castellano or any other respondent either harassed the applicant or acted independently or outside the course of their job responsibilities.
17The respondents have asked that the style of cause for both Applications be amended to show that Saputo Dairy Products Canada G.P. is the sole respondent. This is, in effect, a request to add Saputo Dairy Products Canada G.P. as a respondent since no corporate respondent was originally named in this Application.
18I am satisfied that Saputo Dairy Products Canada G.P. should be added as the respondent in the section 34 Application. Saputo Dairy Products Canada G.P., as the applicant’s former employer, would be liable if there was a finding that the termination of the applicant’s employment was an act of reprisal.The applicant has voiced no opposition to this specific request.
19In the circumstances I make the following orders:
Frank Zbaraschuk and Pat Roehl are removed as respondents in Application TR-0419-09.
Frank Zbaraschuk, Pat Roehl Dino Dello Sbarba and Rob Castellano are removed as respondents in Application 2008-00897-I.
3, Saputo Dairy Products Canada G.P. is added as a respondent in Application 2008-00897-I.
20The style of cause for both Applications is amended accordingly.
21I am not seized of this matter.
Dated at Toronto, this 26th day of January, 2010.
“Signed By
Eric Whist
Vice-chair