HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Davut Yildz
Applicant
-and-
M.A.G. Lighting Ltd. and Mustafa Goren
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Yildz v. M.A.G. Lighting
1This Application was filed on August 31, 2010, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) against the personal respondent Mustafa Goren alleging discrimination in employment on the basis of place of origin and ethnic origin. On February 8, 2011 a joint Response was filed with the Tribunal on behalf of Mr. Goren and his employer, M.A.G. Lighting Ltd (“M.A.G. Lighting” or the “corporate respondent”). In this Response under the section entitled “Additional Respondent Contact Information-Organization” the corporate respondent M.A.G. Lighting was named.
2This Interim Decision addresses a Request for an Order During Proceedings (the “Request”) by the respondents, filed on February 8, 2011, to add M.A.G. Lighting as a corporate respondent and to remove Mr. Goren as an personal respondent. The applicant has not filed submissions or a Form 11 with respect to the Request, however, in its Reply filed on March 31, 2011 it opposes the removal of Mr. Goren as a personal respondent.
Request to Add M.A.G. Lighting as a Respondent
[3] It is the Tribunal’s practice that a respondent can name an additional respondent in its Response without having to bring a request to add a party. In such circumstances, the additional respondent is automatically added as a party to the procceding and the Registrar will usually forward copies of the Application and Response and direct the additional party to file its Response within 35 days. However, in this case the additional party has already filed its Response and the Tribunal notes that the style of cause has already been amended to add M.A.G. Lighting Ltd. as a respondent. Therefore M.A.G. Lighting is a respondent and there is no need to deal with the respondents’ Request to add it as a party.
Request to Remove the Personal Respondent
[4] The parties agree that the applicant worked for the coporate respondent for one day to perform some electrical work. The parties agree that on the morning that the applicant worked that there was a conversation that lasted approximately fifteen minutes between Mr. Goren and the applicant and that there was some discussion with respect to his ethnic background and place of origin. The applicant believes that his employment was terminated because Mr. Goren suspected that he was Kurdish. The Respondents deny this allegation and allege that the applicant was only hired on a trial basis and that he did not demonstrate the necessary skills to be offered permanent employment. Mr. Goren alleges that he only met with each trial worker for fifteen minutes and relied solely on his foreman’s assessment of the applicant’s performance when he decided not to offer him permanent employment.
[5] In the Request the respondents assert that Mr. Goren has been employed by M.A.G. Lighting as a Manager for a decade and that he is responsible for all decisions made by the corporate respondent since in all respects he is the controlling mind of the corporate respondent. The respondents submit that it is appropriate to remove Mr. Goren as a personal respondent because at all times he was acting within the scope of his employment. The corporate respondent has stated that it is prepared to take responsibility and assume liability for the conduct of Mr. Goren.
[6] In its Reply the applicant opposes the respondents Request to remove Mr. Goren as a personal respondent because “he was the individual that Mr. Yildz dealt with throughout the case.”
Decision
[7] Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, [2008 HRTO 14](https://www.minicounsel.ca/hrto/2008/14) at para. [42](https://www.minicounsel.ca/hrto/2008/14), the Tribunal set out the general principles that apply to this issue:
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 personal who is sought to be added as a personal respondent, then in my view the personal 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 personal 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 personal if an infringement is found.
[8] The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, [2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31) (“Persaud”) at para. [5](https://www.minicounsel.ca/hrto/2008/31):
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 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 personal 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 personal 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.
[9] In the circumstances of this case I find that all of the factors in Persaud are met except for the fourth factor. It appears that allegations made with respect to Mr. Goren’s conversation with the applicant and his decision not to continue to employ him based on his ethnic background are central to the issues in the Application. I find in the specific circumstances of this case, that the applicant has asserted allegations with respect to Mr. Goren’s conduct which justify continuing this proceeding against him.
[10] Therefore, it is not appropriate to remove Mr. Goren as a personal respondent and the respondents’ Request to remove him is denied.
[11] I am not seized.
Dated at Toronto, this 19th day August of 2011.
”signed by”______________
Geneviève Debané
Vice-chair