Rocha v. Metro Ontario Inc., 2011 HRTO 1572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joel Rocha

Applicant

-and-

Metro Ontario Inc. and Rachid Abou-Hawach

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: August 23, 2011

Citation: 2011 HRTO 1572

Indexed as: Rocha v. Metro Ontario

WRITTEN SUBMISSIONS BY

Metro Ontario Inc. and Rachid Abou-Hawach, Respondents ) André Nowakowski, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to deal with the respondents’ requests to remove the individual respondent from the Application, and to revise the deadline for disclosing expert witnesses.

BACKGROUND

2The applicant, who says he requires a cane to walk, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 23, 2009, which alleged that the respondents discriminated against him with respect to services because of his disability.

3Specifically, he alleged that during a dispute over how many cases of pop he was allowed to buy on sale at a Food Basics grocery store, the individual respondent, Rachid Abou-Hawach, who identified himself as the manager of the store, physically assaulted him, made disparaging comments to him related to his disability, including calling him a “cripple”, and forcibly took his cane away from him.

4The applicant further alleged that the police charged the individual respondent with assault after viewing video footage of the incident.

5The respondents filed a Response on March 5, 2010, which denied the allegation of discrimination. The respondents admitted that there was a dispute between the applicant and the individual respondent, who was the acting manager, over how many cases of pop the applicant was allowed to buy, but denied that the individual respondent physically assaulted the applicant, called him a “cripple”, or initiated taking his cane away from him.

6Rather, the respondents stated that the applicant pushed his shopping cart towards the individual respondent, and made insulting comments about the individual respondent and his mother, and that when the individual respondent confronted the applicant about the comments, the applicant attempted to hit the individual respondent with his cane, which resulted in the individual respondent grabbing the cane in self-defence.

7The respondents admitted that the police charged the individual respondent with assault, but stated that the charges were withdrawn after the individual respondent agreed to enter into a Recognizance to have no contact or communication with the applicant.

REQUEST TO REMOVE INDIVIDUAL RESPONDENT

8The respondents filed a Request for an Order During Proceedings on March 5, 2010, which requested that the Tribunal remove the individual respondent from the Application. The applicant did not file a Response to the Request.

9Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, 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 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.

10The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

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 is 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 sought to be removed?

c) Is there is 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.

11Pursuant to the factors set out in Persaud, the respondents submitted that Mr. Abou-Hawach should be removed as an individual respondent from the Application for the following reasons. First, there is an organization respondent in this proceeding that also is alleged to be liable for the same conduct to have been committed by the individual respondent. Second, there is no suggestion that the individual respondent was acting outside of his employment, and the organization respondent has assumed responsibility for his conduct. Third, there is no issue as to the ability of the organization respondent to respond to or remedy the alleged Code infringement. Fourth, there is no compelling reason to continue the proceeding against the individual respondent. Fifth, there would be no prejudice caused to the applicant if the Tribunal were to remove the individual respondent from the proceeding.

12The respondents further submitted that it is not necessary to permit the applicant to continue the proceeding against the individual respondent in order to ensure a fair, just and expeditious resolution of the merits of the Application.

13I disagree. The alleged conduct of the individual respondent is clearly the central issue in the case, and the nature of the alleged conduct may make it appropriate to award a remedy specifically against him if an infringement of the Code is found. In my view, this outweighs the other factors, and it is necessary to involve the individual respondent as a party in order to have a fair, just and expeditious resolution of the merits of the Application.

REVISION OF DEADLINE FOR DISCLOSING EXPERT WITNESSES

14The respondents filed a letter on June 15, 2011, which requested that the Tribunal order the applicant to disclose any expert witnesses that he plans to call at the hearing prior to the disclosure deadline set out in the Tribunal’s Rules of Procedure. The applicant did not respond to the request.

15The respondents’ request did not comply with Rule 19.2 of the Tribunal’s Rules, which states that where a request for an order during proceeding is made in writing, it must be made in Form 10, Request for Order during Proceedings. [Emphasis added] That said, in order to be expeditious, I will exercise my authority pursuant to Rule 5.2 of the Tribunal’s Rules to vary the application of the Rules, and accept and treat the letter as a Request for an Order During Proceedings.

16Rule 17 of the Tribunal’s Rules requires each party to deliver to every other party and file with the Tribunal a witness list and brief statement summarizing the expected evidence of each witness, including expert witnesses, no later than 45 days prior to the first scheduled day of hearing. Rule 17 also provides that a copy of an expert witness’s written report or full summary of proposed evidence, and curriculum vitae, must accompany the witness list.

17On May 26, 2011, the Tribunal issued a Confirmation of Hearing Notice to the parties, which informed them that the hearing is scheduled for October 28, 2011. The Notice also set out the Tribunal’s Rules with respect to disclosure of documents and witnesses, and informed the parties that the disclosure deadline was September 14, 2011.

18The respondents admitted that they do not know if the applicant is planning to call any expert witnesses, but submitted that if they only find out that he is planning to do so on September 14, 2011, it will be impossible for them to retain their own expert, and properly prepare for the hearing on October 28, 2011. Accordingly, the respondents requested that the Tribunal order the applicant to disclose to them an expert witness list, a description of what each expert witness will say, and a copy of any relevant expert documents that will be relied on seven weeks and two days prior to the September 14, 2011 disclosure deadline.

19The respondents’ request is denied. I am not willing make an order in anticipation of an event that may never happen, and for which there is no information before me that would allow me to properly assess whether there is any prejudice to the respondents.

ORDER

20The Tribunal therefore makes the following orders:

(a) The respondents’ request to remove the individual respondent from the Application is dismissed.

(b) The respondents’ request to revise the deadline for disclosing expert witnesses is dismissed.

21I am not seized of this matter.