Mark Oproiu v. ATG Communications Group, 2011 HRTO 1775

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mark Oproiu

Applicant

-and-

ATG Communications Group

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: September 29, 2011 Citation: 2011 HRTO 1775 Indexed as: Oproiu v. ATG Communications Group

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on May 11, 2009, alleging discrimination with respect to employment on the basis of disability.

2The Application originally only named two personal respondents, those being the President and the Sales Manager of the applicant’s employer, ATG Communications Group. By way of Interim Decision 2011 HRTO 1518, ATG Communications Group was added to the Application as the corporate respondent.

3On September 6, 2011, the respondents filed a Request for Order During Proceedings (“RFOP”) asking that both personal respondents be removed from the Application. The respondents submit that since the corporate respondent was added as a party to the Application it is unnecessary that the proceeding continue as against the personal respondents when the allegations relate to the actions and decisions of the personal respondents in their employment capacity.

4The applicant has not filed submissions in response to the RFOP and the timeline for doing so has elapsed.

ANALYSIS

5The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove a personal respondent from a proceeding:

1. Is there 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 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 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?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

6Based on a review of the applicant’s narrative, I accept the respondents’ submissions that the allegations pertain to the personal respondents’ actions in the course of their employment roles and not in their personal capacities. As there are no allegations with respect to the personal respondents’ conduct independent of their employment duties, there does not appear to be any issue with respect to the corporate respondent’s deemed or vicarious liability in this regard. I find no compelling reason to continue the Application as against the personal respondents. I also find that the corporate respondent is in the best position to satisfy any potential remedies. The applicant has not asserted any prejudice would be caused to his ability to have a full hearing of the alleged concerns.

7I find that it is appropriate to remove the personal respondents from the proceedings at this time. I am satisfied that, considering all the circumstances, it is not necessary to proceed against the personal respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

ORDER

8For the reasons stated above, the respondents’ RFOP is granted. As such, the personal respondents are removed from the Application and the style of cause is amended accordingly.

9I am not seized.

Dated at Toronto, this 29th day of September, 2011.

”signed by”

Ena Chadha

Vice-chair