HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Allan MacNeil Applicant
-and-
Loft Community Services Respondent
Interim decision
Adjudicator: Judith Keene Date: April 28, 2010 Citation: 2010 HRTO 925 Indexed as: MacNeil v. Loft Community Services
1The Application in this matter was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), on June 22, 2009. The applicant alleged discrimination with respect to employment on the basis of disability contrary to the Code.
2The purpose of this Interim Decision is to determine the applicant’s Request for an Order During Proceedings (“Request”) to add the ground of age to the Application and the Request of the respondents to remove the personal respondent as a party. The decision also addresses the timelines for the preparation for the hearing.
3The hearing is scheduled for June 28, 2010.
The Applicant’s Request to add a ground of discrimination
4On November 11, 2009, the applicant filed his Request that the Application be amended to add age as an additional ground of discrimination. The applicant also requested the production of a “listing of salary differential between pay scale of applicant and that of position of program director requested”.
5The respondents opposed both Requests. The respondents indicate that the “factual basis for the allegation of age discrimination would have existed at the time that the applicant filed his original application, and he should not be permitted to add the additional allegation of age discrimination approximately five months after he filed his application”.
6In response to the request for a “listing”, the respondents state that no such document exists.
Respondents’ Request to Remove the Personal Respondent as a Party
7On February 18, 2010, the respondents filed a Request that the individual respondent be removed as a party to the Application. The respondents rely on Persaud v. Toronto District School Board, 2008 HRTO 31, in support of their Request. The respondents state that the personal respondent was at all times acting in the course of his job responsibilities.
ANALYSIS AND DECISION
The Request to amend
8The hearing is more than two months away. I cannot see how anyone would be prejudiced by granting the applicant’s Request to amend at this stage. I am satisfied there is ample time for all parties to prepare for the hearing and to address the issues raised in the Application. Further, the respondents have not provided any arguments or evidence to support a claim of unfairness or prejudice. The Request to amend the Application to include the ground of age is granted.
The Request to remove the personal respondent
9If the allegations in this Application concerning the actions of the personal respondent were proven in a hearing, there could be a finding that the Code has been breached. However, the corporate respondent has accepted responsibility for the actions of the personal respondent. There are no allegations of harassment in this Application, and, if a Code violation is found, the corporate respondent is liable for the personal respondent’s actions by virtue of section 46.3 of the Code, which states:
46.3(1) 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.
10As noted in the Tribunal’s Information Bulletin, it is not necessary to name individuals as personal respondents where they were acting in the course of their regular duties.
11The Tribunal has expressed concern about the unnecessary naming of personal respondents in applications where there is an organizational or corporate respondent who is also liable for the alleged infringement of the applicant’s rights and is in a position to satisfy any remedies ordered in the case: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, see also Haynes v. Ottawa-Carleton District School Board, 2008 HRTO 26 at para. 20.
12The applicant has not submitted any compelling facts or legal issues that would indicate that the party status of the personal respondent should be maintained. On its facts, this case is clearly distinguishable from cases such as Brady v. Durham Rapid Taxi, 2010 HRTO 788.
13The personal respondent is removed as a party and the style of cause amended accordingly.
Directions regarding time limits for filing of pleadings and exchange of documents
14The Confirmation of Hearing was sent to all parties on February 16, 2010. In order to ensure the fair, just and expeditious conduct of the hearing in this matter on June 28, 2010, I make the following orders:
a) If they have not already done so, the parties are directed to send to each other a copy of all arguably relevant documents in their possession.
b) The parties are also directed to send to each other and to file with the Tribunal a copy of the documents they intend to rely upon at the hearing and brief will-say statements setting out the intended evidence of each of their witnesses in compliance with the Rules.
15I am not seized of this matter.
Dated at Toronto, this 28^th^ day of April, 2010.
“Signed by”
_________________________________
Judith Keene Vice-chair