HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kendrick Kim
Applicant
-and-
Global Payments of Canada GP, Drake International Inc., and
Persila Vachon,
Respondents
Interim Decision
Adjudicator: David Muir
Indexed as: Kim 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 is intended to ensure the orderly adjudication of this Application.
2This Application is scheduled for hearing commencing September 19, 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, and age were infringed by the respondents. The allegations involve two groups of respondents, Drake International Inc., Stephen Muscat, Jamie Hart, Neil Wiseman and James Duff, the “Drake respondents” and Global Payments of Canada GP, and Persila Vachon, the “Global respondents”.
3The particulars of these allegations are as follows:
a. The applicant was hired to work at Global from September 14, 2009 for three to four months. The applicant was trained for 10 weeks but even though he scored high marks in the training he was terminated.
b. When the applicant asked why he was terminated he was told that he was not confident. On another occasion he was told that he took too much time to serve customers, although he had been told to take the time necessary to resolve his customers’ problems.
c. During training sessions the respondent Vachon used racial expressions like 'Are you Korean? I am not Chinese.'
d. The respondents Drake and Global have refused to pay one week’s pay in lieu of Notice.
e. The respondent Drake indicated that there may be work elsewhere but as of the time of filing the Application nothing had been provided to the applicant.
4The Drake respondents raised a number of preliminary issues.
a. The Drake respondents state that the allegations, even if true, do not constitute a violation of the Code.
b. The Drake respondents state that the Application is frivolous, vexatious and an abuse of process.
c. The Drake respondents state 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 individual respondents.
5The Drake respondents had also stated that this Application be dismissed as the substance of it was being dealt with in another proceeding which has since concluded. The respondents appear to have abandoned this issue.
6As can be seen from the summary of the Application set out above, the claims made in the Application are largely assertions with few if any facts to support them. It is also not clear how the allegations engage any Code related ground of discrimination. The only claim that potentially relates to any of the Code grounds claimed are the allegations of remarks made by the respondent Vachon. The applicant was directed to provide further particulars of his allegations but failed to do so.
REMOVAL OF THE INDIVIDUAL DRAKE RESPONDENTS
7As indicated above the Drake respondents seek an Order removing the individual respondents Stephen Muscat, Jamie Hart, Neil Wiseman and James Duff from the Application.
8The 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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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.
9The applicant made no submissions on this issue although given an opportunity to do so. The applicant also failed to comply with my Direction to provided further particulars. Accordingly, this issue must be determined on the basis of the allegations as set out above.
10I am not satisfied having regard to the factors set out above in the Persaud case, as well as the allegations in the Application, that there is any compelling reason to continue this proceeding against any of the individual Drake respondents. The applicant does not make the 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 respondents Wiseman and Duff are not mentioned in the narrative of allegations. For all of these reasons the Drake respondents’ Request to remove the individual respondents is granted and the style of cause amended accordingly.
FAILURE TO PROVIDE PARTICULARS
11Section 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. The applicant is directed to provide further particulars of his allegations as set out above within 15 days of the date of this Interim Decision failing which the Application may be dismissed as an abuse of process.
OTHER MATTERS
12As set out above the respondents have stated that the Application should be dismissed because the allegations even if true do not constitute a violation of the Code. This issue remains outstanding and may be revisited upon receipt of the applicant’s further particulars.
CASE ASSESMENT DIRECTIONS
13In order to ensure the orderly adjudication of this Application the Tribunal makes the following further Directions to the parties:
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 complete any of the other production requirements under Rules 16 and 17 on or before August 12, 2011 failing which this
Application may be dismissed as an abuse of process.
3.) The respondents shall deliver and file their materials in accordance with Rules 16 and 17.
4.) Further Case Assessment Directions may be provided as appropriate.
14I am not seized.
Dated at Toronto, this 28th day of July, 2011.
“Signed by”
David Muir
Vice-chair