Sadeghzadeh v. Gesco Limited Partnership LLP, 2010 HRTO 193

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sam Sadeghzadeh

Applicant

-and-

Gesco Limited Partnership LLP

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: January 27, 2010

Citation: 2010 HRTO 193

Indexed as: Sadeghzadeh v. Gesco

WRITTEN SUBMISSIONS BY

Sam Sadeghzadeh, Applicant ) On his own behalf

Gesco Limited Partnership LLP, and Elaine ) Jonathan Cocker, Representative

MacIsaac, Respondents )

1This is an Application filed on March 24, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges that he was subject to discrimination and reprisal in employment on the grounds of ancestry, place of origin and disability.

2In a previous Interim Decision, 2009 HRTO 2060, the Tribunal called for submissions on the issues of deferral and removal of a personal respondent.

3Submissions have now been received and this Interim Decision addresses those two issues.

REMOVAL OF PERSONAL RESPONDENT

4The Application names Elaine MacIsaac, the Human Resources Director for the respondent GESCO, as a personal respondent.

5The 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 decisions of the Tribunal. (See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31).

6In Sigrist, the Tribunal set out the general approach to this issue, stating as follows at 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.

7In Persaud, the Tribunal expanded on these principles as follows, at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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.

8On my review of the submissions and the material before me, including the allegations made by the applicant and relief requested, I am satisfied that the personal respondent should be removed from this proceeding. There is no suggestion that she was acting outside the course of her employment, her employer has assumed responsibility for their conduct and I see no prejudice to the applicant’s ability to proceed with the hearing of this matter and receive an adequate remedy if an infringement of the Code is established.

9I therefore order that Elaine MacIsaac be removed as a respondent and the title of proceedings be amended accordingly.

DEFERRAL

10The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.

11The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues.

12In this case, the applicant has a grievance arising out of the termination of his employment in which he seeks “full redress” that appears to be well underway. The matter has proceeded to arbitration and Arbitrator Kennedy has begun hearing evidence. There is overlap between the factual base of the matters before the arbitrator and the allegations contained in this Application. There are no circumstances that would cause the Tribunal to depart from its normal approach.

13The Application will therefore be deferred pending the completion of the grievance arbitration.

14The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of the arbitration proceeding.

15I am not seized.