Gerard Dunphy v. Primary Response Inc., 2010 HRTO 1865

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gerard Dunphy

Applicant

-and-

Primary Response Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 13, 2010

Citation: 2010 HRTO 1865

Indexed as: Dunphy v. Primary Response

1This Interim Decision deals with the request by several of the named respondents to be removed as parties to this Application, as well as the request to defer this Application pending a determination of the applicant’s claim to the Ministry of Labour alleging a contravention of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”).

2The applicant filed his Application on April 22, 2010, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability, age and reprisal. He named four respondents in his Application: (1) Primary Response Inc., his employer; (2) Tony Halcon, an employee of Primary Response; (3) Humber College Institute of Technology and Advanced Learning (“Humber College”), the client of Primary Response at which premises he worked; and (4) Gary Shaw, an employee of Humber College.

3During the period in which he filed his Application, the applicant also filed a claim with the Ontario Labour Relations Board alleging a reprisal for having filed a previous complaint, contrary to s.50 of the OHSA.

4On July 23, 2010, counsel for Humber College and Gary Shaw filed a Request for Order During Proceedings, asking the Tribunal to, among other things, dismiss the Application against them as they were not properly named respondents. On August 22, 2010, a Response was filed on behalf of Primary Response and Tony Halcon, which raised two preliminary requests; namely that Halcon be removed as a respondent and the Application be deferred pending the outcome of the proceeding under the OHSA.

5The applicant has not filed a Response to the Request for Order, nor has he filed any Reply to the Response of Primary Response and Tony Halcon. In the absence of such documents, his position on the issues of the removal or respondents and deferral is not known.

DECISION AND ANALYSIS

Removal of Respondents

6In Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 4, the Tribunal reiterated its concern about the “unnecessary naming of personal respondents” and offered a framework for considering whether to remove personal respondents:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

7In the material filed on behalf of the four named respondents, there is unanimity that Primary Response, not Humber College, is the applicant’s employer. Humber College is, instead, a client of Primary Response. Moreover, there is unanimity that Humber College was not involved in the decision to remove the applicant from the Humber College assignment. The applicant’s allegations against Humber College are vague and, in any event, fail to assert a basis on which he alleges that this organization discriminated against him with respect to employment. Accordingly, Humber College is not a properly named respondent to this Application and I order it removed as a party to this proceeding.

8Gary Shaw works for Humber College. The applicant alleges that during his assignment at one of the Humber College parking lots, he interacted with Mr. Shaw. However, none of the allegations against Mr. Shaw allege conduct that is contrary to the Code. Accordingly, Mr. Shaw is not a properly named respondent to the Application and I order him removed as a party to this proceeding.

9Tony Halcon, an employee of Primary Response, was named as a respondent to this Application, apparently on the basis that he authored two emails to the applicant and may have been originally involved in the assignment to Humber College. Primary Response denies that Halcon’s actions were discriminatory but states that in the event they are found to be improper it “accepts liability, if any, for Halcon’s actions in relation to the above allegations.” There is no compelling reason on the face of the Application for continuing against this individual, nor has the applicant identified any prejudice that might result from removing him as a respondent to the proceeding. Accordingly, I order Tony Halcon removed as a party to this proceeding.

Deferral

10Rule 14.1 of the Tribunal’s Rules of Procedure states that the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

11In Baghdasserians v. 674469 Ontario, 2008 HRTO 404, the Tribunal made the following general comments about deferral at paras. 18-19:

Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings.

Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

12The applicant filed his claim under the OHSA after he was removed from his assignment at Humber College. He alleges this was in reprisal for having filed a previous claim to the Ministry of Labour about health and safety issues, which resulted in his concerns being addressed. This appears to also be the basis of the reprisal portion of his Application to this Tribunal. It is clear from the correspondence submitted by the parties that the claim under the OHSA deals with many of the same factual allegations as the Application.

13There is potential for duplication of evidence in two concurrent proceedings and the possibility of inconsistent findings of fact. In light of the significant overlap, deferral is the most fair, just and expeditious way of proceeding with the Application. Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the proceeding before the Ministry of Labour.

14Where a party wishes to proceed with an Application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

15I am not seized of this matter.