Human Rights Tribunal of Ontario
B E T W E E N:
Labib Awad
Applicant
-and-
Lazer-Tech Ltd., Douglas Miranda, Rejendra Pariag and Bhesham Prasad
Respondents
Interim Decision
Adjudicator: David Muir Date: July 22, 2011 Citation: 2011 HRTO 1379 Indexed as: Awad v. Lazer-Tech
1This is an application filed on June 30, 2009, pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). This Interim Decision deals with a number of issues raised in a Request for Order During Proceeding filed by the applicant on July 11, 2011.
2In his Request the applicant appears to be seeking to defer the Application and adjourn the hearing for 12 months. In addition he is seeking an Order adding six new individual respondents as parties and to extend the time period covered by his human rights complaint (the “complaint”) filed at the Ontario Human Rights Commission (the “Commission”) in August 2005, which underlies this Application, and add new allegations.
3The applicant alleged in his complaint that his right to be free from discrimination in employment was infringed by the respondents on the basis of the applicant’s colour, ethnic origin, place of origin and religion. The last incident of discrimination is said to have occurred on June 29, 2005. The applicant self identifies as a muslim arab.
4The particulars of this general allegation are set out here:
a) On January 26, 2005, the respondent Douglas Miranda gave a printout to the applicant to read and said, “[i]t sounds like English but I can’t understand a word you are saying”. The applicant says that he threw the document away but it was laying on his keyboard the following day so he kept it in his drawer.
b) On February I, 2005, the applicant performed a rush job, an hour later, Mr. Pariag, the Production Manager harassed the applicant to release it earlier but when Mr. Miranda had a rush job Mr. Pariag allowed Mr. Miranda to keep it on his desk for two weeks.
c) On February 4, 2005, the applicant was made aware of emails apparently written by Mr. Miranda which the applicant characterized as disturbing. They included what appear to be references to employees of the respondent corporation as the Egyptian warrior and another person as the little Indian. The applicant complained to Mr. Pariag about the content of these emails.
d) On February 5, 2005, there was a verbal altercation involving Mr. Miranda and the applicant. Mr. Miranda made a number of threats against the applicant. Mr. Miranda’s behaviour was raised with Mr. Pariag, whose only response was to point out a number of work errors made by the applicant.
e) On February 28, 2005 the applicant wrote a letter to Lazer Tech Management to inform them that he was experiencing retaliation from Mr. Miranda's friends in supervisory positions in the company. He also expressed concern that Mr. Miranda might learn his home address.
f) The applicant states that Lazer Tech started giving him warning letters for using the internet and email, the employer cut his hours and when he complained Mr. Pariag sent him home. The applicant states that Mr. Prasad and Mr. Pariag came to engineering and asked him why he was there. The applicant responded that his shift was 10:30-7:00 and had been for 6 months. They both laughed and asked why he did not quit his job.
g) On April 25, 2005, the applicant wrote a letter of complaint to Mr. Jamie Armitage, Owner and President of Lazer-Tech, about the treatment he was experiencing from Mr. Pariag and Mr. Prasad. The applicant alleged that the two men were harassing him, spreading rumours about him, targeting him for discrimination, singling him out and not paying him appropriately.
h) When the applicant made health and safety complaints, Mr. Pariag asked him why he did not quit.
i) On May 12, 2005 Mr. Pariag cut the applicant’s hours of work. On May 16, 2005, Mr. Pariag told the applicant that if he did not like his new hours he could quit. On June 29, 2005 Mr. Prasad threatened to fire the applicant.
5While the applicant has filed a large number of documents he has not yet filed a Statement of Additional Facts. He was directed to do so in a Case Assessment Direction issued on June 20, 2011.
Request to Defer and Adjourn the hearing for 12 months
6The hearing is scheduled to begin on September 12, 2011. The applicant has requested that the hearing be deferred or adjourned for 12 months. The applicant provided no reasons for this aspect of his Request. It is denied. I am not satisfied that it is necessary to the fair, just and expeditious adjudication of this Application to defer or adjourn it for 12 months in these circumstances.
Request to add additional parties
7The applicant states that six new individuals must be added as parties to the Application because it was through their actions that the corporate respondent discriminated against the applicant. It is not clear that any of the proposed new respondents have been served with a copy of the Application or the Request that they be added as parties.
8I am not satisfied that it is necessary to the fair, just and expeditious adjudication of this proceeding to add the individuals identified by the applicant. I also find that it would be manifestly unfair to require individuals to respond for the first time to allegations respecting events which are said to have occurred more than 6 years ago. None of the individuals were named as respondents in the human rights complaint underlying this Application. Most of them are not even mentioned in the narrative of the complaint.
9In addition to these considerations there is the general approach taken by the Tribunal in assessing the need to add or remove an individual respondent. These are set out in Persaud v. Toronto District School Board 2008 HRTO 31:
Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14 at para 42:
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
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
a) is there 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 [is] sought to be removed?
c) is there 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.
10The applicant has articulated no compelling reason to add the proposed new individuals as respondents. I am not satisfied having regard to the factors set out above in the Persaud case that there is any compelling reason to commence a proceeding against any of the proposed individual respondents. There is no claim by the applicant that there is no corporate respondent capable of responding to his claims of discrimination or to provide an appropriate remedy should a violation be found. The applicant also does not provide any basis for concluding that it is likely that a remedy might be awarded against any of the named individuals because their role in the alleged discrimination was central. As indicated above, most of the new individuals are not mentioned in the complaint. For all of these reasons, the Request to add six new individual respondents is dismissed.
Request to amend the Application
11The applicant states that the scope of the Application should be expanded to include alleged acts of discrimination between June 2005 and October 2006. He states that the discrimination he experienced continued beyond the filing of the complaint in August 2005.
12Section 53(5) of the Code and the Tribunal’s Rules of Procedure for Transitional Applications provide that an Application such as this one must be based on the complaint as it was when it was abandoned at the Commission and the Application filed with the Tribunal. As indicated above, the complaint included allegations said to have occurred between January and June 2005. The complaint was not amended to include any further allegations. I am not satisfied that it is necessary to ensure the fair, just and expeditious adjudication of this Application to expand its scope in the manner requested by the applicant. On the contrary, I find that it would be manifestly unfair to require the respondents to respond to unparticularized allegations being advanced for the first time five to six years after the event.
13For all of these reasons the Request to expand the scope of the Application is denied.
Other Matters
14As indicated above the applicant has failed to file a Statement of Additional Facts although directed to do so. As indicated in my Directions issued on July 12, 2011. In the absence of a Statement of Additional Facts from the applicant, the respondents should file their material assuming that the facts and issues are those set out above. The hearing will proceed on the basis that the facts being relied on by the applicant are those set out above in the human rights complaint and paraphrased in paragraph 4 above
15I am not seized of this case.
Dated at Toronto this 22nd day of July, 2011.
“Signed by “
David Muir Vice-chair