Steven De Prophetis v. Ministry of Labour, Mili New, Don Hall and Rick Hughes, 2011 HRTO 1003

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven De Prophetis Applicant

-and-

Ministry of Labour, Mili New, Don Hall and Rick Hughes Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty Date: May 26, 2011 Citation: 2011 HRTO 1003 Indexed as: De Prophetis v. Ministry of Labour

WRITTEN SUBMISSIONS

Steven De Prophetis, Applicant (Self-Represented) Ministry of Labour, Mili New, Don Hall and Rick Hughes, Respondents (Peter Dailleboust, Counsel)

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability and family status.

2In essence, the applicant alleges that the respondents have failed to accommodate him in relation to his disability and his family status. He has named a number of individual respondents, including George Parris, counsel to the corporate respondent.

[3] The respondents have filed an incomplete Response. On February 7, 2011, the respondents filed a Request for an Order During Proceedings ("Request") seeking: a. the removal of George Parris as a personal respondent in this proceeding; b. disclosure and particulars; and c. an extension of time in which to file a complete Response until the Tribunal determines the Request to remove Parris as a personal respondent.

4The respondents filed further written submissions on February 23, 2011, reiterating their Request and including an addendum to their incomplete Response.

5The applicant has not filed a Response to the Request and the time for doing so under the Rules has elapsed.

FACTUAL OVERVIEW

6The applicant is employed by the corporate respondent as an Employment Standards Officer. He resides in Niagara Falls.

7The applicant states that he has ongoing accommodation needs that relate to his disability and his family responsibilities towards his teenage daughter, whom he says requires urgent care and support. He states that, because of his family status and his disability, he must be allowed to work close to home.

8The applicant worked at the corporate respondent's St. Catharines location. On or about October 18, 2010, he was reassigned to the Hamilton office. He states that the respondents' decision to assign him to Hamilton constitutes discrimination and a failure to accommodate under the Code.

9The applicant filed a grievance on November 28, 2008, alleging a breach of article 3 of the collective agreement. More specifically, he alleged that Mili New subjected him to harassment and discrimination on the basis of disability. On November 3, 2010, the Grievance Settlement Board ("GSB") dismissed the grievance.

10The applicant filed a further grievance on February 2, 2010, alleging discrimination in violation of article 3 of the collective agreement. This grievance was scheduled to proceed to arbitration on March 15 and 16, 2011.

REQUEST TO REMOVE PARRIS

11The applicant names George Parris as personal respondent. Mr. Parris is counsel to the corporate respondent and represents or has represented it in the two grievances filed by the applicant.

12The respondents submit that Parris is not properly a party to the proceedings and that it would be unfair to require the respondents to file a full Response before determining their request to remove him as a personal respondent. The respondents further state that Parris' involvement as a party in this proceeding would prevent him from providing legal advice in relation to the Application and would require them to waive their rights to solicitor and client privilege.

13There is only one reference to Parris in the Application: the applicant alleges that Don Hall was to report back to him after conferring with legal counsel. The Application does not contain any actual allegations of discrimination by Parris, nor does it request any specific remedy against him.

14The Tribunal set out its general approach to this issue in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. It wrote:

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.

15In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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 [is] 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?

16The respondents state that Parris was acting wholly within the normal course of his employment and that his only involvement with the applicant was in relation to representing the corporate respondent in proceedings initiated by the applicant. In any event, the corporate respondent accepts liability for the actions of the Parris should the Tribunal find in favour of the applicant.

17I am satisfied that the factors set out in Persaud are met. Parris is removed as a personal respondent and the style of cause is amended accordingly.

NEXT STEPS

18Within 21 days of the date of this Interim Decision, the respondents must file a complete Response with the Tribunal. In their Response, the respondents must indicate whether or not they wish to seek a deferral of the Application pending any ongoing grievance proceedings.

19Within 31 days of the date of this Interim Decision, the applicant may file a Reply. The Reply must address any request for deferral.

20The remaining preliminary issues raised by the parties may be addressed by the Tribunal once the Response and Reply have been filed.

21I am not seized of this matter.

Dated at Toronto, this 26th day of May, 2011.

"Signed by"

_________________________________

Michelle Flaherty Vice-chair