Trudel v. Classic Touch Foods (1203283 Ontario Inc.), 2011 HRTO 1306

Human Rights Tribunal of Ontario

Between:

Robert Trudel Applicant

-and-

Classic Touch Foods (1203283 Ontario Inc.) Respondent

Interim Decision

Adjudicator: Ena Chadha Date: July 7, 2011 Citation: 2011 HRTO 1306 Indexed as: Trudel v. Classic Touch Foods (1203283 Ontario Inc.)

1The applicant filed an Application on April 22, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination and reprisal with respect to employment because of disability. On August 11, 2010, the respondents filed a Response, and on August 25, 2010, the applicant filed a Reply.

2On June 15, 2011, the respondents filed a Request for Order During Proceedings (“RFOP”) asking that the Tribunal dismiss the Application for failing to establish a prima facie case of discrimination and also seeking that the personal respondent be removed from the Application.

3The applicant did not file submissions in response to the RFOP.

Request to Remove the Personal Respondent

4The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

5Based on my review of the parties’ materials, there does not appear to be any issue with respect to the deemed liability of the corporate respondent for the conduct of the personal respondent. The personal respondent is the President of the corporate respondent. The corporate respondent is a named party to the proceeding and submits that it is able and willing to take responsibility for the alleged conduct of the personal respondent. As such, there does not appear to be any issue with respect to the corporate respondent’s ability to respond to or remedy the alleged Code infringement.

6I find that there is no compelling reason on the face of the Application to continue against the personal respondent as it appears that the impugned interactions with the applicant arose out of the personal respondent’s managerial role. The allegations against the personal respondent relate to comments made during a meeting and the applicant’s dismissal. The applicant has not identified any prejudice that might result from removing the personal respondent from the Application. Accordingly, the personal respondent is removed as a party to this proceeding and the style of cause is amended accordingly.

Prima Facie Case

7The respondent requests that the Application be dismissed on the basis it does not raise a prima facie case. Rule 19.7 of the Tribunal’s Rules provides that the Tribunal will determine whether a Request for Order will be heard in writing, in person, or electronically and, where necessary, will set a date for the hearing of the Request. In my view, the respondent’s request that the Application be dismissed on the basis that it does not raise a prima facie case is a matter that may be raised by the respondent as a preliminary issue at the hearing in this case.

Conclusion

8The Tribunal orders that the personal respondent is removed from the Application and the style of cause is amended to reflect the same. The Application will be placed in the queue for hearing scheduling.

9I am not seized.