HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ramadan Mustafa
Applicant
-and-
Corporation of the City of Mississauga
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Date: December 15, 2010
Citation: 2010 HRTO 2477
Indexed as: Mustafa v. Mississauga (City)
1The applicant filed this Application on February 23, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondents terminated his employment because he has a gambling addiction. The applicant alleges that the respondents failed to provide him with appropriate accommodation and failed to consider his disability in assessing concerns of misconduct. In addition to the organizational respondent, the Application identifies six personal respondents.
2The respondents filed a Response on July 2, 2010 denying the allegations of discrimination. The respondents allege that they were never provided with any medical documentation confirming the applicant’s alleged gambling addiction and that applicant was dismissed for theft (misappropriation of funds). In their Response, the respondents request that the Tribunal dismiss the Application because another proceeding has appropriately dealt with the Application. The respondents also filed a Request for Order During Proceedings (“RFOP”) requesting that the Tribunal remove the personal respondents from the Application.
3The applicant filed a Reply on August 11, 2010 opposing the respondents’ request for early dismissal. The applicant did not file any submissions in response to the respondents’ RFOP requesting the removal of the personal respondents.
REQUEST TO DISMISS
4The respondents request early dismissal of the Application on the basis that other proceedings through the Employment Insurance Commission and the Board of Referees have appropriately dealt with the substance of the Application. The respondents indicate that a Board of Referees, appointed pursuant to the Employment Insurance Act, S.C. 1996, c. 23 (the “Act”), rendered a decision finding that the applicant’s employment was terminated due to his own misconduct.
5The respondents submit that the applicant applied for Employment Insurance (“EI”) benefits and, although the applicant’s claim for EI sick benefits was approved, his claim for regular EI benefits was denied. The applicant appealed his claim for benefits to the Board of Referees and a telephone hearing was held in this matter. The Board of Referees rendered a decision upholding the Employment Insurance Commission’s decision denying the applicant regular EI benefits because the applicant’s employment was terminated due to his own misconduct.
6Section 45.1 of the Code provides as follows:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
7The Tribunal’s jurisprudence has suggested that section 45.1 should be considered in two parts: (1) whether there was another “proceeding”, and (2) if so, whether it “appropriately dealt with” the substance of the application. The purpose of section 45.1 is to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere.
8I conclude that the first prong of the section 45.1 analysis is satisfied. A hearing conducted by the Board of Referees is a proceeding for the purposes of section 45.1 of the Code. See Napash v. URS Canadian Operations, 2010 HRTO 1281.
9However, I find that the second prong of the section 45.1 analysis has not been met. I am not satisfied that the human rights substance of the Application was “appropriately” dealt with.
10The applicant alleges that the respondents infringed his Code-protected rights by dismissing his employment on the basis of disability. Specifically, the applicant alleges that the respondents treated his disability (gambling addition) differently from other conditions/misconduct (i.e. impaired driving). Further, the applicant alleges that the respondents did not properly consider the impact of his gambling addiction in concluding whether his misconduct was culpable or non-culpable. The applicant asserts that non-culpability due to disability was a legitimate factor for the respondents to have considered in their duty to accommodate and in assessment of appropriate accommodation. The applicant alleges that the respondents failed to undertake an appropriate procedural and substantive accommodation analysis.
11Based on a review of the Board of Referee’s decision, I find that the Board of Referees simply determined whether or not the applicant was entitled to regular EI benefits. In reaching its conclusion, the Board of Referees considered whether the applicant was disqualified for benefits under section 30 of the Act because he lost his employment by reason of his misconduct. The Board of Referees concluded that the applicant was dismissed because of theft and fraudulent activities and that “[t]he mere fact of having a gambling problem is not in itself sufficient to make the finding of misconduct inapplicable to the (applicant).”
12The Board of Referees’ conclusions regarding misconduct may resolve issues of eligibility under the Act. However, this does not mean that the parties’ respective Code rights and responsibilities were assessed and appropriately dealt with. For example, there is no indication that the Board of Referees considered whether a gambling addiction came within the Code’s definition of disability, nor carried out an assessment of the procedural and substantive components of the duty to accommodate or considered the defence of undue hardship.
13In the circumstances, I am not satisfied that the applicant’s allegations of disability discrimination have been dealt with appropriately in other proceedings. The respondents’ request for early dismissal of the Application is dismissed.
REQUEST TO REMOVE PERSONAL RESPONDENTS
14In addition to the organizational respondent, the Application identifies six personal respondents.
15The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal who [is] sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
16The organizational respondent submits that at all material times the personal respondents were acting in their managerial capacity. The organizational respondent points out that the personal respondents should not be personally named in the Application because it is liable for precisely the same conduct as alleged against the personal respondents, and no independent allegations have been made against the personal respondents. The organizational respondent submits that no remedies have been sought from the personal respondents and as such it is not appropriate to continue the proceedings as against them.
17I find that, in applying the Persaud factors, the circumstances support the removal of the personal respondents. The allegations with respect to the personal respondents relate directly to their management role with the organizational respondent and decisions made in this official capacity. It appears that the organizational respondent has agreed to assume responsibility for the actions of the personal respondents should any violations of the Code be determined. Further, no prejudice has been asserted by the applicant in regards to removal of the personal respondents. All remedies sought by the applicant relate to the organizational respondent. In these circumstances, I do not see a compelling reason to continue the Application against the personal respondents. As such, the Tribunal orders that the personal respondents are removed as parties to the Application and the style of cause is amended accordingly.
CONCLUSION
18Given that the parties have indicated that they are amenable to participate in mediation, the Registrar’s Office will contact the parties to schedule a mediation in this matter.
19I am not seized of this matter. .
Dated at Toronto, this 15th day of December, 2010.
”signed by”__________
Ena Chadha
Vice-chair