HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Peter Kumarsingh
Applicant
-and-
MASCO Retail Cabinet Group LLC and Patrick Jakins
Respondents
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Kumarsingh v. MASCO Retail Cabinet Group
BACKGROUND
1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on November 23, 2009 alleging discrimination with respect to employment on the basis of race, colour, ancestry, place of origin, ethnic origin, disability and family status. In summary, the applicant alleges that the respondents have subjected him to discrimination by failing to accommodate his special needs arising from his family status because they are requiring him to travel overnight when his young children require him to be at home overnight. He alleges that the respondents have been accommodating white co-workers, but not him.
2The respondents filed a Response, denying the allegations of discrimination, and subsequently filed a Request for Order During Proceedings asking the Tribunal to remove the personal respondents. The personal respondents named in the Application were David Ryan, Director, Employee Relations; Patrick Jakins, Director of Sales; Ken Williams, Vice President; and Daryl Vojtush, Professional Relations Manager.
3The applicant has opposed the Request.
DECISION
4Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined a “non-exhaustive list of factors” that may be helpful in assessing whether a personal respondent should be removed including:
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?
5The respondents submit that all the factors outlined above support removal of all of the personal respondents who were named in the Application. The respondents submit that all of the personal respondents are employees who acted in the course of their employment. The corporate respondent accepts its vicarious liability for the actions of the personal respondents, and is in the capacity to provide the remedies requested if the Tribunal finds discrimination in this case.
6The respondents argue that no conduct of a personal respondent is a central issue to the Application. The respondents submit that the only specific allegation against any of the personal respondents named in the Application is a reference to the fact that Mr. Ryan, who is responsible for managing the corporate respondent’s human resources in North America, authored a letter written on behalf of the corporate respondent, advising the applicant of its position with respect to travel expectations.
7I am not convinced that the conduct of Mr. Ryan, in writing the letter referred to above, would qualify as conduct which is a central issue of the case. The corporate respondent takes responsibility for the position set forth in the letter, and it would not prejudice the applicant to remove Mr. Ryan as a personal respondent. The only conduct attributed to Mr. Ryan specifically in the Application is the writing of this letter, and I therefore find it appropriate to remove him as a personal respondent.
8I disagree that of the four personal respondents named, the Application only refers to Mr. Ryan. Form 1-A, which forms part of the Application, states, “Whenever my white co-workers have a family status issue would [sic] asked [sic] for accommodation. Patrick Jakins would grant them the accommodation.” Mr. Jakins is the Director of Sales and is described in the Response as responsible for finding efficiencies in the sales division where the applicant works. He addressed workload inequities amongst the sales representatives by re-aligning sales territories, changing the applicant’s boundaries as well as the number and location of stores he needed to visit. As a result, the applicant was required to travel overnight. Given the allegation that Mr. Jakins treated the applicant differently because he is from Trinidad and not white, Mr. Jakins’ conduct may be a central issue in this case. At this preliminary stage of the proceedings, it is not appropriate to remove him as a personal respondent.
9The applicant provided submissions citing s.39(2)(e) of the Code in support of his argument that none of the personal respondents should be removed. I note that the Code has not contained this section for several years, since it was amended in 2006, and therefore I cannot accept the applicant’s argument in that respect. As well, I cannot agree with the applicant’s submissions that no personal respondent should be removed given each one’s conduct. There is nothing in the Application’s narrative describing any conduct of Mr. Vojtoush or Mr. Williams specifically, let alone conduct that might make it appropriate to award a remedy specifically against them if an infringement of the Code is found. It appears that they are named merely because of their managerial positions. Like Mr. Ryan, they are removed as personal respondents.
10The style of cause is amended so that the only personal respondent remaining is Mr. Jakins.
11I am not seized.
Dated at Toronto, this 26^th^ day of January, 2011.
”signed by”_______________
Mary Truemner
Vice-chair