Waller v. Polycorp, 2010 HRTO 374

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Harold Waller Applicant

-and-

Polycorp Ltd. Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: February 18, 2010 Citation: 2010 HRTO 374 Indexed as: Waller v. Polycorp

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 and reprisal in employment on the basis of record of offences.

2This Interim Decision addresses the respondents' Request for Order During Proceedings (Form 10) to remove the six individual respondents and to dismiss the Application on the basis that the allegations are outside the jurisdiction of the Tribunal. The respondents filed a Form 23 indicating that the Request for Order was properly served on the applicant on August 26, 2009. The applicant filed no response to the Request for Order.

3In addition to the above, this Interim Decision requires the applicant to further particularize his Application.

Removal of Individual Respondents

4The applicant has named six persons as individual respondents, one of whom no longer works for the corporate respondent. Counsel for the corporate respondent (and five of the six individual respondents) asserts there is no basis for naming any of the six individual respondents.

5In 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.

6The Application only makes reference to four of the six personal respondents. The applicant does not allege that Peter Snucins or Andrew Haber had anything to do with any of the allegations of unfair treatment while he was employed with the corporate respondent. Accordingly, there is no basis for maintaining the Application against them and I order them removed as parties to this proceeding.

7The respondents submit that the applicant has mistakenly identified Robert Graham as the person who ordered him off work until he was able to get medical clearance (and that the actual individual was Tim Frank, another named personal individual respondent). This is the only allegation against Mr. Graham. The applicant, although served with the Request for Order, did not file a response and there is nothing in the file otherwise disputing the accuracy of the respondents' assertion. Accordingly, I accept the factual assertion with respect to Mr. Graham, and order him removed as a party to this proceeding.

8With respect to the remaining three individuals – all supervisors for the corporate respondent – there is no issue with respect to the deemed liability of the corporate respondent for their conduct, nor has the applicant raised any issue with respect to the corporate respondent's ability to respond to or remedy the alleged infringement. There is no compelling reason on the face of the Application for continuing against these three individuals, nor has the applicant identified any prejudice that might result from removing them as respondents to the proceeding. Accordingly, I order Tim Frank, Ryan Beimes and George Brooks removed as parties to this proceeding.

Jurisdiction / Requirement for Further Information

9In the portion of his Application in which the applicant is asked on what grounds his Application is based, he selects the boxes for "record of offences" and "reprisal." At no point in his summary of allegations, however, does he refer to any record of offences, nor does he answer the specific questions designed to elicit this information in the Form 1-A to his Application. It would appear that this ground was selected in error.

10Although the applicant does not select "disability" under grounds alleged, his narrative, as well as his answers to the Form 1-A portion of his Application, makes it apparent that he is asserting some form of discrimination on the ground of disability or perceived disability. Unfortunately, it is very difficult to ascertain what precisely the applicant is alleging happened, when it happened, and why he believes the actions amount to discriminatory conduct on the part of the corporate respondent.

11In my view, these facts are not sufficient to allow for the fair, just, and expeditious determination of the merits of the Application. Specifically, they do not provide details necessary for the respondent to respond to the allegations and the Tribunal to determine whether the allegations are within its power (jurisdiction) to decide.

12Within 10 days of the date of this Interim Decision, the applicant is directed to set out in detail the facts which support the Application. In particular, the applicant should advise with respect to each of the allegations in his Application:

a. What happened and when did it happen?

b. Why what happened amounts to a violation of the Code?

13The corporate respondent correctly states that the Tribunal does not adjudicate general claims of unfairness. There must be a nexus between the allegation and a ground under the Code. That is, each allegation must, if true, amount to an infringement of the Code. Following receipt of the applicant's further particulars, the corporate respondent shall have a further 10 days in which to file further argument on the question of the Tribunal's jurisdiction to deal with the allegations.

14I am not seized of this matter.