HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gulam Walji
Applicant
-and-
Hewlett Packard (HP) Canada
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Walji v. Hewlett Packard
1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in the provision of services on the basis of ancestry, creed, ethnic origin and race. His Application named both an organizational respondent, Hewlett Packard ("HP"), and an individual respondent, Mark Hurd, the CEO of the international parent company of HP.
2Subsequent to receiving the Response, the applicant sought to amend his Application by way of Request for Order During Proceeding (Form 10). This Interim Decision addresses the applicant's Request to amend. It also addresses the respondents' Request for Order During Proceedings to remove the individual respondent.
Removing the Individual Respondent
3In 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.
4The applicant does not allege that Mark Hurd was in any way involved with the applicant's interaction with the company, or otherwise conducted himself in a discriminatory manner. He is named as a respondent solely because he is the CEO of the international parent company of HP. This is an insufficient basis for naming this individual as a respondent. The applicant has not identified any prejudice that might result from removing him as a respondent to the proceeding. Accordingly, I order Mark Hurd removed as a party to this proceeding.
Amending the Application
5The applicant requested that his Application be amended by the addition of six paragraphs, under the following two headings: "Additional details about 'Helen' (located in Canada)" and "Additional details about 'Mr. S.W.' (located in the U.S.A.)." These paragraphs provide additional particulars about his interactions with these two individuals.
6The respondent did not file a Response to the applicant's Request, and there is no compelling basis for denying the amendment request. No hearing dates have been scheduled for this matter. Accordingly, the answer to question 8 in the Application is amended to include the six above-referenced paragraphs, which are found in the attachment to the applicant's October 12, 2010 Form 10.
7I am not seized of this matter.
Dated at Toronto, this 25th day of November, 2010.
"Signed by"
Naomi Overend
Vice-chair