Davis v. United Food & Commercial Workers Canada, Local 333, 2010 HRTO 1656

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christopher Davis

Applicant

-and-

United Food & Commercial Workers Canada, Local 333, G4S Security Service Canada Ltd., Jeff Ketelaars, Brian Parsons, Melisa Loipersbeck

and Susan Babcock

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: August 9, 2010

Citation: 2010 HRTO 1656

Indexed as: Davis v. United Food & Commercial Workers Canada, Local 333

1This Application, filed on September 4, 2009 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), involves allegations of discrimination on the basis of colour, ethnic origin, and disability in the context of employment. The applicant also alleges reprisal or threat of reprisal.

2In essence, the applicant is alleging that he was unfairly terminated from his employment and inadequately represented by the United Food & Commercial Workers Canada, Local 333 (“Union”). Although he does not identify creed as a ground of discrimination in the Application, the applicant seems to also allege that the employer and the Union failed to properly consider both his disability-related and religious needs.

3This Application appears to name as respondents the applicant’s Union, at least two employees or representatives of the Union, as well as three individual respondents who appear to be managers with the applicant’s former employer. The former employer is not named as a respondent.

4The respondents, Brian Parsons, Melisa Loipersbeck and Susan Babcock (collectively, the “Employer respondents”) have filed a Response in which they deny the allegations of discrimination and seek the dismissal of the Application because it does not make out a prima facie case of discrimination.

5In an earlier Interim Decision (2010 HRTO 394), the Tribunal denied the Union’s request for deferral and directed the Union, Jeff Ketelaars and Paul Bedi (collectively, “Union respondents”) to file a Response.

6The Union respondents have filed a Response in which they deny the allegations of discrimination and seek the following orders:

a. the addition of G4S Security Service Canada Ltd. (“G4S”), the applicant’s former employer, as a respondent;

b. the removal of Paul Bedi as a respondent; and

c. particulars and further documentation.

7G4S has filed a Request to Intervene. None of the parties have responded to the Request to Intervene and the time for doing so has elapsed.

8The applicant has not filed a Reply.

REQUEST TO ADD G4S AS A RESPONDENT

9In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following three factors to be considered in determining a request to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

10I find that there is sufficient basis to G4S as a respondent to the Application. The essence of the allegations relate to the termination of the applicant’s employment with G4S. I find there are allegations made in the Application that could support a finding that the respondent violated the Code. Further, adding G4S as a respondent at this preliminary stage of the proceedings does not appear to result in any unfairness or prejudice to the parties.

11Accordingly, G4S is added as a respondent to these proceedings and the style of cause is amended accordingly.

REQUEST TO REMOVE AN INDIVIDUAL RESPONDENT

12The Tribunal set out the general approach to this issue Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. The Tribunal wrote:

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.

13In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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?

14In my view, there is no reason why Paul Bedi should be a personal respondent in this matter. There is nothing to suggest that Mr. Bedi’s acted outside the normal course of his employment. The Union is the subject of the allegations of discrimination and there is no apparent prejudice to the applicant if Mr. Bedi is removed.

15As a result, I order that Paul Bedi be removed as a respondent in this matter. The style of cause is amended accordingly.

REITERATION OF THE REQUEST FOR PARTICULARS

16Notwithstanding the Tribunal’s earlier Interim Decision addressing the Union respondents’ Request for particulars, the Union respondents have reiterated their Request for particulars.

17Although they refer to general ambiguity in the allegations, the Union respondents have not identified any particular information which they feel is lacking, nor have they indicated how the regular disclosure process provided for in the Tribunal’s Rules of Procedure would result in insufficient particulars in the circumstances.

18I find there is no basis to interfere with the earlier Interim Decision denying the Request for particulars.

NEXT STEPS

19The respondent, G4S is directed to file a Response within 20 days of the date of this Interim Decision.

20All of the parties (with the exception of G4S, who has not yet filed its Response) have indicated they wish to participate in mediation. If G4S agrees to mediation, the Registrar will schedule a mediation in this matter. Any outstanding or additional Request for Orders During Proceedings will be dealt with after the mediation.

21I am not seized of this matter.