Hoyes v. Woodbine Entertainment Group, 2010 HRTO 2467

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Noel Hoyes

Applicant

-and-

Woodbine Entertainment Group and Martin Garcia

Respondents

-and-

Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: December 13, 2010

Citation: 2010 HRTO 2467

Indexed as: Hoyes v. Woodbine Entertainment Group

1This Application was filed on March 5, 2010 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The purpose of this Interim Decision is to address the respondents’ Request to remove the individual respondent as a party to this Application and to address a Request by the Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union (the “union”) to intervene in the Application. The union is the certified bargaining agent for the applicant’s workplace.

REQUEST TO INTERVENE

2The union is seeking to intervene on the basis that it has an interest in the outcome of the litigation and it wishes to ensure that it is able to present evidence and submissions with respect to its role in the events arising subsequent to the applicant’s internal complaint to the corporate respondent.

3The Request to Intervene was delivered to the applicant as well as the corporate and individually named respondents. None of the parties have filed a Form 11 setting out their position on the union’s request and the time for doing so has now passed.

4In the circumstances I am satisfied that the union should be granted intervenor status. The extent of the union’s participation in the hearing will be determined by the presiding Vice-chair or Member.

REQUEST TO REMOVE INDIVIDUAL RESPONDENT

5Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

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.

6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 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 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.

7The respondents submit that the above factors favor the removal of Martin Garcia as a personal respondent in this matter.

8The applicant has not filed a Form 11 in response to the respondents’ Request and the time for doing so has now passed.

9Although the respondents indicate that “the applicant has raised no issue with respect to the deemed liability of the corporate respondent for Garcia’s conduct” and although they point out that the applicant has not sought a remedy directly from the personal respondent, I note that the allegations with respect to the personal respondent Garcia involve a contravention of s. 5(2) of the Code.

10Section 46.3(1) reads as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

11In the circumstances, the respondents’ request to remove the respondent Garcia as individual respondent to the Application is denied.

ORDER

12The Service Employees International Union Local 2, Brewery, General & Professional Workers’ Union is added to this Application as an intervenor. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter.

13I am not seized of this matter.