HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tom Argiropoulos Applicant
-and-
University of Toronto, Rosie Poseca, Kristy Forrest Marton and Anne Creptak Respondents
INTERIM DECISION
Adjudicator: Ena Chadha Date: August 15, 2011 Citation: 2011 HRTO 1507 Indexed as: Argiropoulos v. University of Toronto
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on June 7, 2011 alleging discrimination with respect to employment because of disability. The Application originally name one institutional respondent, his employer the University of Toronto, and 8 personal respondents: Karen Lewis, Anita Comella, Rosie Posca, Paul Dutchak, Melissa Krist, Kristy Forrest Marton, Anne Ellis and Anne Creptak.
2On December 10, 2010, the Tribunal issued a Notice of Intent to Dismiss as against five personal respondents on the basis that the Application may be outside the Tribunal’s jurisdiction because the Application failed to identify any specifics acts of discrimination within the meaning of the Code allegedly committed by those respondents. The Tribunal identified personal respondents Karen Lewis, Anita Comella, Paul Dutchak, Melissa Krist and Anne Ellis as the individuals whom were named, but there did not appear to be any Code-related allegations in the Application related to these individuals. The Tribunal invited the applicant to provide written submissions to explain how each individual respondent is alleged to have breached the Code.
3The applicant filed submissions on August 5, 2011. The applicant agreed to remove Paul Dutchak, Anne Ellis and Karen Lewis as named parties to the Application. In his submissions, the applicant asserts that the Application should be continued against Melissa Krist because she was the manager of his department at the time of the alleged discrimination. In addition, the applicant indicates that he seeks to add two more respondents.
4The Application has not been delivered to the respondents.
ANALYSIS
5Based on a review of the materials, one proposed respondent, namely Anne Creptak, is already identified as a personal respondent in the Application. With respect to the other proposed respondent, if the applicant seeks to add another respondent, he is required to file a Request for Order During Proceedings with notice to all other parties and the proposed respondent setting out his submissions and any supporting documentation explaining the basis for his request. As such, at this stage of the proceedings, the applicant’s request to add another respondent is denied. In light of the applicant’s agreement to remove three individuals, the Application will not proceed as against: Paul Dutchak, Anne Ellis and Karen Lewis. Other than identifying her managerial role in overseeing his supervisor, the applicant did not explain how Melissa Krist allegedly engaged in discrimination or harassment.
6The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in specific areas (for example, employment) on the basis of specific protected grounds listed in the Code (for example, disability, gender and age, etc.). The Tribunal does not have a general power to inquire into claims of unfairness outside of the grounds listed in the Code. An Application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction: Masood v. Bruce Power, 2008 HRTO 381, Morin c. Alliance de la function publique du Canada, 2008 HRTO 58, and Hotte v. Ontario (Finance), 2008 HRTO 63.
7The applicant has not identified any basis upon which he alleges that Anita Comella infringed his Code rights. The Application merely indicates that Anita Comella was the Assistant Dean of his department and does not specify any allegations as against this individual. I note that in Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:
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.
8In my view, it is plain and obvious on the face of the Application that the allegations as against the two personal respondents Anita Comella and Melissa Krist, do not fall within the Tribunal’s jurisdiction. Furthermore, the applicant’s written submissions fail to explain how each of them is alleged to have breached the Code.
9This is not a final decision regarding the Tribunal’s jurisdiction in respect of this Application. Any of the respondents may make submissions on whether the Application is within the Tribunal’s jurisdiction or may ask that the Tribunal remove some or all of the personal respondents as parties to this proceeding having regard to the factors in Persaud v. Toronto District School Board, 2008 HRTO 31.
ORDER
10I find that the Application does not raise allegations as against Anita Comella and Melissa Krist and accordingly, the Application will not proceed as against these two personal respondents. The Application will also not proceed as against Paul Dutchak, Anne Ellis and Karen Lewis. The Tribunal therefore orders that these five individuals be removed as respondents to the Application and the style of cause is amended accordingly.
11The Application will be delivered to the remaining respondents, along with a copy of the Notice of Intent to Dismiss, the applicant’s submissions in response to the Notice and this Interim Decision.
Dated at Toronto, this 15^th^ day of August 2011
”Signed by”
Ena Chadha
Vice-chair