HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rennie Shah

Applicant

-and-

LOFT Community Services and Tony Crosbie

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: October 27, 2010

Citation: 2010 HRTO 2165

Indexed as: Shah v. LOFT Community Services

BACKGROUND

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"), on October 2, 2009 alleging discrimination and reprisal with respect to employment on the basis of race, colour, ancestry and ethnic origin. In summary, the applicant alleges that the respondents have subjected him to discrimination and reprisal by treating him unfairly, curtailing his advancement opportunities, and unduly criticizing his work performance. The applicant also alleges that the respondents have ignored his concerns with respect to systemic discrimination.

2The respondents filed a Response on December 14, 2009, denying the allegations of discrimination and reprisal. The respondents submit that they have held proper job competitions and that the applicant has not been the successful candidate. The respondents also submit that they have taken appropriate steps to investigate and address the applicant's concerns and many of the issues raised by the applicant relate to working relationships and communication styles.

3The applicant filed a Reply on February 12, 2010.

4On September 30, 2010, the applicant filed a Request for Order During Proceedings seeking to amend the Application.

5On October 1, 2010, the respondents filed a Request for Order During Proceedings asking the Tribunal to remove the personal respondent.

6Both parties have filed submissions in response to each others' Requests. The respondents object to the applicant's Request to amend. The respondents submit that alleged incidents do not constitute reprisal and are exercises of management's supervisory responsibilities and functions. The applicant objects to the respondents' Request to remove the personal respondent. The applicant submits the personal respondent played a major role in the discrimination he experienced.

DECISION

Request to Amend

7In considering requests to amend applications under section 34 of the Code, the Tribunal generally examines the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

8In his Request, the applicant particularizes seven additional examples of alleged reprisal arising from on-going workplace interactions. These events, spanning from December 2009 to September 2010, relate to the applicant's concerns about being spoken to harshly, treated unfairly, and overlooked for promotion. These additional particulars do not appear to raise new or distinct concerns from discrimination and reprisal detailed in the original narrative, but rather appear to be further examples of the types of concerns he originally raised in the Application. In my view, these new allegations appear to be a continuation of the Application's original narrative and, as such, I am not persuaded that an amendment is necessary in the circumstances.

9The Application already alleges reprisal, so the Application does not need to be amended to reiterate this ground. It appears to me that the additional allegations flow from or form part of the continuum of facts of the original Application. As noted in Lewis v. Lakeridge Health Corporation, 2010 HRTO 1096, an application will often relate to facts that are on-going. In the present case, the applicant is essentially claiming the same wrongdoing as alleged in his original Application through examples of on-going events. As such, I find it is not necessary to amend the Application.

10Given the on-going work relationship between the parties, I believe that the Tribunal member presiding over the hearing of the merits of the Application will be in the best position to determine which, and to what extent, the applicant's concerns regarding on-going reprisal should be addressed in the hearing.

Request to Remove Personal Respondent

11Rule 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 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 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?

12The respondents submit that all the factors outlined above support removal of the personal respondent. They note that the corporate respondent is alleged to be liable for the same conduct as the personal respondent and that the corporate respondent is best placed to respond to and remedy any alleged Code infringement. They maintain that the allegations against the personal respondent, as a member of management of the corporate respondent, impugn his supervisory decisions and, therefore, there is no issue with respect to deemed or vicarious liability. The respondents suggest that there are no compelling reasons for continuing the proceedings against the personal respondent given that the applicant does not seek any specific remedy against him.

13On my review of the submissions and the material before me, I am satisfied that the personal respondent should not be removed from this proceeding. While I appreciate that there is no issue with respect to the first three factors, I find there is a compelling basis to continue with the personal respondent as a named party in this proceeding. Tribunal jurisprudence has held that it is appropriate to continue the proceeding as against the personal respondent where it is the individual conduct of the personal respondent that is a central issue. See Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155 and Bianca v. Maritime Travel, 2010 HRTO 1077.

14In his narrative, the applicant has made extensive and detailed allegations against the personal respondent. The applicant clearly feels that personal respondent has a central role in his experiences of discrimination. It is apparent that the applicant's concerns pertain to the personal respondent's alleged hostile behaviour and comments towards him. The applicant also perceives that he was singled out by the personal respondent who subjected him to unfair treatment.

15I appreciate that it is the respondents' position that the personal respondent, as management, had responsibility to oversee the applicant and address any perceived performance shortcomings. The question remains is whether the comments and conduct of the personal respondent were appropriate performance management, as alleged by the respondents, or differential treatment and reprisal with respect to protected Code grounds, as alleged by the applicant. This is one of the primary issues in the case and, in these circumstances, it is my view that it would not be appropriate to remove the personal respondent given the nature and extent of the applicant's allegations.

16I am not seized.