Felix v. Global Payments of Canada GP, 2011 HRTO 1423

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Der Von Felix Applicant

-and-

Global Payments of Canada GP, Drake International Inc., and Persila Vachon Respondents

Interim Decision

Adjudicator: David Muir Date: July 28, 2011 Citation: 2011 HRTO 1423 Indexed as: Felix v. Global Payments of Canada GP

1This is an Application made under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated December 15, 2009. This Interim Decision deals with a number of preliminary matters raised by the parties.

2The respondents Drake International Inc.; Stephen Muscat; Jamie Hart and James Duff (the Drake respondents) seek the dismissal of the Application; alternatively they seek the removal of the Application as against the individual Drake respondents. The respondent Neil Wiseman, one of the Drake respondents at the time the Response was filed, joined in the Request that the individuals be removed.

3The respondents Global Payments of Canada GP and Persila Vachon (the Global respondents), by correspondence dated July 25, 2011 state that the applicant has failed to comply with the Tribunal’s directions and seek further Direction from the Tribunal in that regard. The Global respondents also seek Direction from the Tribunal with respect to the applicant’s announced intention to not identify his witnesses prior to the hearing.

4The Application is scheduled for hearing commencing September 26, 2011. The applicant has alleged in his Application that his right to be free from discrimination in employment on the basis of race, colour, ethnic origin, place of origin, association and reprisal was infringed by the respondents. Although this is not entirely clear, the body of the Application also contains what may be allegations that the applicant’s right to be free from discrimination in employment on the basis of creed and family/marital status was violated and that he was subject to sexual solicitation.

5The particulars of these allegations are as follows:

a. During the week of October 11, 2009, the respondent Vachon harassed the applicant about his abilities and knowledge. The respondent Vachon also made discriminatory remarks about his marriage to a person who is Japanese. These personal attacks continued until the applicant was terminated.

b. Prior to this time, the respondent Vachon expressed no concerns about the applicant’s abilities and the available data establishes that the applicant was performing his duties adequately.

c. On November 17, 2009, in a meeting with Persila Vachon, Stephen Muscat, and Neil Wiseman the applicant was singled out. At the same meeting the applicant was threatened by Muscat. At that time, the respondents said that his performance was quite good and they wanted to hire him “full time”.

d. On November 18, after speaking to a police officer about the threats, the applicant spoke with Issak Nalbandian, who said he would take care of it. Nathanson spoke with Vachon, who when she later came out of her office said she had sent an email (it is done) and then left work early.

e. When the applicant got home later that day, he received a phone call from Drake International advising him that he had been terminated.

f. The applicant was contacted by others who were terminated and was thus a target.

6The particulars of the creed discrimination claim are that the applicant is a Seventh-Day Adventist and he had a conversation with the respondent Vachon in the week of October 11, 2009.

7The allegation of sexual solicitation and claim of family/marital status discrimination are that the respondent Vachon “broadcast her breast” and came close to the applicant until he objected.

8In a CAD dated June 24, 2011 I made a number of Directions to the parties as follows:

a. The applicant will deliver and file full particulars of the allegation set out above within 20 days of the date of this CAD.

b. At the same time the applicant will deliver and file his submissions on the Drake respondents’ request that the individual respondents be removed from the Application.

c. The Drake respondents will deliver and file their reply submissions if any, on this request within 10 days of receiving the applicant’s materials

d. The applicant will deliver and file his submissions in response to the respondents’ Request to Dismiss, if this issue is pursued, within 20 days of receiving the respondents’ submissions.

9The applicant has declined to make submissions in response to the Directions in paragraphs 2(a) and (b) above, other than to say in emails dated June 25 and July 18, 2011 that he has already provided sufficient details. As well, in the email of June 25, 2011 the applicant indicated that he would not comply with the requirement of the Tribunal’s Rules that he identify his witnesses and provide a summary of their expected evidence in advance of the hearing. I will deal with this issue and make Directions with respect to it below.

RESPONDENTS’ REQUEST TO DISMISS

10The Drake respondents state that the applicant has failed to comply with my Direction to him to provide further particulars of the allegations he has made in the Form 1. As indicated previously the applicant has declined to comply. The Drake respondents state that the Application as against them ought to be dismissed on the basis that it disclosed no prima facie case of discrimination. The Drake respondents also state that a fair, just and expeditious adjudication of the Application is not possible without the Applicant providing further particulars. The Global respondents, by correspondence dated July 26, 2011 indicate their general agreement with the submissions of the Drake respondents on these points.

11The Drake respondents also note that the applicant has not made any submissions in response to their request to remove the individual respondents from the Application. On that basis alone, the Drake respondents state the Application as it relates to the individual respondents should be dismissed.

12I share the respondents’ concern with the applicant’s failure to provide particulars of his allegations. I agree that a fair, just and expeditious hearing will not be possible unless and until the applicant complies with my Directions. I also agree that the allegations against the Drake respondents as currently articulated do not appear to disclose a prima facie case of discrimination. I find that the most fair, just and expeditious manner of proceeding is to require that the Applicant be provided a further opportunity to comply with my Directions failing which the Application may be dismissed as an abuse of process.

13I do not agree that the Application should be dismissed as against the individual respondents simply because the applicant declined to make submissions. However, for reasons set out below, I find that it would be appropriate to remove the individual respondents from the Application.

14In their Response to this Application the Drake respondents stated that the individual respondents Muscat, Hart, Wiseman and Duff should be removed from the Application because:

i. At all times they were each acting in the course of their employment with Drake; and,

ii. The Application does not make out a contravention of the Code against any of the respondents.

15The general approach taken by the Tribunal in assessing the need to add or remove an individual respondent has been 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 found.

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:

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?

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.

16The applicant has made no submissions on this issue although he was given an opportunity to do so. The applicant has also failed to comply with the Direction to provided further particulars. Accordingly this issue must be determined on the basis of the allegations as set out above.

17I am not satisfied having regard to the factors set out above in the Persaud case, and the allegations as set out above, that there is any compelling reason to continue a proceeding against any of the individual Drake respondents. The applicant does not make a claim 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 could be awarded against any of the named individuals because their role was central to the alleged discrimination. Indeed the lack of particulars at this stage make it difficult to discern any Code issue at all. For all of these reasons the Drake respondents’ Request to remove the individual respondents is granted and the style of cause amended accordingly.

IDENTIFYING WITNESSES

18The Global respondents seek further Direction from the Tribunal respecting the applicant’s announced intention of not identifying the applicant’s witnesses prior to the hearing. The applicant has on several occasions, most recently in an email dated July 26, 2011, indicated that he will not identify any of his witnesses prior to the hearing. The witnesses are unidentified other than it is said that some of them were also employed by the respondents and were terminated. The applicant has also suggested that two police officers will be summonsed to give evidence. The applicant asserts that the respondents will interfere with his proposed witnesses.

19The Tribunal’s Rules of Procedure provide as follows:

RULE 17 DISCLOSURE OF WITNESSES

17.1 Unless otherwise ordered by the Tribunal, not later than 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.

17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.

17.3 A copy of an expert witness’ written report, or full summary of proposed evidence, and curriculum vitae must accompany the witness list.

17.4 No party may present a witness whose name and summary of evidence was not included in a witness list and delivered and filed in accordance with Rules 17.1 and 17.2 or present an expert witness if material has not been delivered and filed in accordance with Rule 17.3, except with the permission of the Tribunal.

20The applicant has indicated on several occasions that he will not comply with the requirements of Rule 17. He has also indicated that he intends to call a large number of witnesses. It will be impossible to determine if any of the witnesses will have any relevant evidence given the lack of particulars in the Application if the applicant fails to identify his witnesses and a summary of their anticipated evidence. However based on the limited information provided by the applicant there is reason to be concerned that many of the proposed witnesses will not have arguably relevant evidence to provide to the Tribunal.

ABUSE OF PROCESS

21As previously indicated I have concluded that the most fair, just and expeditious manner of proceeding in this case is to afford the applicant a further opportunity to comply with my Directions and provide particulars of his complaint. In the absence of particulars the respondents are put in the position of not knowing the case they have to meet. I am also concerned that the applicant has indicated that he will not identify his witnesses or provide a summary of their expected evidence in accordance with the Rules. If the applicant fails to comply with my Directions and the Tribuanal’s Rules the Tribunal will be unable to properly assess the evidence that might be relevant to the issues in dispute and properly manage the hearing process to ensure a fair, just and expeditious adjudication of this case.

22Section 23(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S. 22, provides that “a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.” I find that it is necessary to prevent an abuse of the Tribunal’s process to allow the applicant a further opportunity to comply with my earlier Directions to provide further particulars of his allegations as well as to identify his witnesses prior to the hearing which he has indicated that he will not do. Accordingly, I make the following further Directions:

1.) The applicant will deliver and file full particulars of the allegations outlined above in paragraph 3 within 15 days of the date of this Decision failing which the Application may be dismissed as an abuse of process.

2.) The applicant will deliver and file a complete list of his proposed witnesses with a summary of their expected evidence on or before August 12, 2011 in accordance with Rule 17, failing which the Application may be dismissed as an abuse of process.

3.) The applicant will complete any of the other requirements under Rules 16 and 17 on or before August 12, 2011 failing which this Application may be dismissed as an abuse of process.

4.) The respondents shall deliver and file their materials in accordance with Rules 16 and 17.

5.) Further Case Assessment Directions may be provided as appropriate.

OTHER MATTERS

23The Drake respondents had suggested that they would be seeking the early dismissal of the Application on the basis that the substance of the Application has been appropriately dealt with in an other proceeding and were directed to confirm whether or not that position was being advanced. To date the respondents have not indicated whether that issue is being pursued and I have assumed in this Decision that it is not.

24I am not seized.