HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jonathan Cann
Applicant
-and-
Rona Ontario Inc.
Respondent
A N D B E T W E E N:
Jonathan Cann
Applicant
-and-
Rona Ontario Inc., Rona Inc. and Noble Trade Inc.
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Cann v. Rona Ontario
INTRODUCTION
1The applicant filed an Application on July 27, 2009 (“the 2009 Application”) alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.10, as amended (the “Code”). The 2009 Application concerns the treatment leading up to and including his termination from employment on July 19, 2009. He named Rona Ontario Incorporated (“Rona”), the company for which he worked, and two individuals employed with Rona as respondents to the 2009 Application
2The applicant filed a second Application on September 13, 2010 (“the 2010 Application”) alleging discrimination in employment on the basis of disability and reprisal contrary to the Code against Rona Ontario Incorporated, Rona Incorporated and Noble Trade Incorporated (collectively “the corporate respondents”) and six individually named respondents. The 2010 Application concerns an alleged failure to offer him an interview or hire him in four separate job competitions.
3The purpose of this Interim Decision is to address the outstanding Requests for Orders During Proceeding (“RFOPs”) in both the 2009 and 2010 Applications. In addition, there are procedural matters on which the Tribunal requires further submissions/confirmation from the parties.
4The RFOPs related to the 2009 Application are as follows: (1) the applicant’s Request to add individual respondents; (2) the respondent’s Request to remove the already named individual respondents; and (3) the applicant’s Request to amend his Application to add an additional ground and a further allegation. In the 2010 Application the respondents brought an RFOP to remove the individual respondents.
DECISION AND ANALYSIS
Request to add/remove individual respondents
5Rule 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, 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.
6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) 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:
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 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.
The 2009 Application
7The applicant names two individual respondents, Miranda Corman and Ruth Richardson, in his 2009 Application. The applicant alleges Ms. Corman failed to respond to one of his requests for accommodation and was one of the individuals who advised the applicant that his employment was being terminated. With respect to Ms. Richardson, who was a benefits administrator with Rona, he alleges that she poisoned his work environment by expressing her belief that people who applied for STD, LTD and WSIB benefits (especially those who filed multiple requests) were taking advantage of the system.
8Rona submits that there is no issue with respect to the first three parts of the Persaud test, given that it has been named, is able to respond to and remedy the alleged infringements, and accepts that it is liable for the acts of the individual respondents, whom it submits were acting within the scope of their employment.
9With respect to the fourth and fifth parts of the Persaud test, Rona submits that there is no compelling reason to continue against these two individuals and removing them as respondents would not result in any prejudice to the applicant. The applicant has not filed any submissions indicating why it is necessary to maintain these two individuals as respondents. On the face of the Application, the applicant is not seeking individual remedies against either of the individuals. I agree with the respondents’ submission that continuing against these individuals would add to the complexity of the proceedings, but would otherwise not add to the fair, just and expeditious resolution of this matter.
10For all of these reasons, the Request to remove the personal respondents is granted and the personal respondents, Miranda Corman and Ruth Richardson, are removed as parties to the 2009 Application. The style of cause is amended accordingly.
11The applicant seeks to add four individual respondents: Robert Dutton, President; Christine Proulx, Vice President of Human Resources; and Kristy Wegener and Adina Ingram, both Senior Human Resources Advisors with Rona. With respect to Mr. Dutton and Ms. Proulx, the sole basis for adding them, as set out in his Form 10, is that the applicant alleges he informed them of the discrimination and “nothing was done to resolve the matter. As with Ms. Corman, the applicant alleges he spoke with Ms. Wegener about his need for accommodation “and nothing was done.” Finally, with respect to Ms. Ingram, the applicant alleges that she discriminated against the applicant “in a hiring decision.”
12It is not necessary to add any of these individuals to ensure that there is a fair, just and expeditious hearing of the 2009 Application. In fact, to add them would only add to the complexity of the matter. The corporate respondent is able to respond to and remedy any allegations against these individuals. None of them are central to the applicant’s allegations. Indeed, the allegation against Ms. Ingram concerns a hiring decision addressed in the 2010 Application. The applicant is not seeking individual remedies against any of them.
13For the reasons given for removing the two individual respondents named in his Application, the applicant’s request to add Robert Dutton, Christine Proulx, Kristy Wegener and Adina Ingram as parties to the 2009 Application is denied.
The 2010 Application
14The applicant names six individual respondents in the 2010 Application: Robert Dutton, Christine Proulx, Kristy Wegener, Adina Ingram, April Jones and Miranda Corman. The only allegation against Mr. Dutton, Ms. Proulx, Ms. Ingram and Ms. Corman is that the applicant wrote an email to them on January 5, 2010 asking for accommodation for his disabilities. He does not specify in his Application on what basis Ms. Jones and Ms. Wegener are named.
15In line with the position taken on the 2009 Application, the corporate respondents submit that they are able to respond to and remedy the alleged infringements, and accept liability for the acts of the individual respondents, all of whom were acting within the scope of their employment.
16The applicant asserts that an employee acting in a discriminatory manner is, by definition, acting outside the scope of his or her employment. This line of logic, however, has not been applied by the Tribunal.
17The respondents submit that there is no compelling reason to continue against these six individuals and removing them as respondents would not result in any prejudice to the applicant. The applicant states in response that he will be prejudiced because there will be less incentive to settle and there will be greater flexibility to the Tribunal in spreading a remedy (financial or otherwise) among multiple respondents.
18As noted above, the ability of the corporate respondents to remedy any discrimination is not in issue. Moreover, simply naming more individuals as respondents does not result in an applicant being awarded larger remedies. Even where individual respondents are named, the Tribunal often only orders a global remedy payable either jointly and severally or as against the organizational respondent only. The applicant has not sought individual remedies against these individuals or made submissions that any of these individuals were central to his Application. Indeed, his Application and submissions suggest the opposite.
19For all of these reasons, the respondents’ Request is granted and the personal respondents, Robert Dutton, Christine Proulx, Kristy Wegener, Adina Ingram, April Jones and Miranda Corman, are removed as parties to the 2010 Application. The style of cause is amended accordingly.
Request to Amend the 2009 Application
20The applicant’s Request to amend his 2009 Application to include the ground of sex appears to be in the nature of housekeeping and was not opposed by the respondent. I order that the Application be amended accordingly.
21However, the applicant’s Request to amend his Application to include the allegations concerning Rona’s alleged subsequent failure to hire him appears to have been superseded by the filing of the 2010 Application. The Request to amend to include these allegations of reprisal is, therefore, denied.
Additional Issues
22It would appear that there is a great deal of overlap between the 2009 Application and the 2010 Application filed by the applicant. The parties are directed to provide their written submissions on consolidation of the two Applications by February 4, 2011, failing which the Applications will be consolidated. All parties must file a Form 23 Statement of Delivery confirming delivery of their written submissions at the same time as they file these submissions.
23Finally, there is some confusion about the representation of the applicant given that some documents appear to have been prepared by the applicant himself and some appear to have been prepared by his representative. The applicant is directed to advise the Tribunal by February 4, 2011 whether he is self-represented or whether Mr. Cecil Norman continues to act as his representative in this matter.
24I am not seized of this matter.
Dated at Toronto, this 24^th^ day of January, 2011.
”signed by”______________
Naomi Overend
Vice-chair