HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Wasi Khan
Applicant
-and-
Seneca College of Applied Arts and Technology and Karen Murkar
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Khan v. Seneca College
WRITTEN SUBMISSIONS
)
Wazi Khan, Applicant ) Self-represented
)
Seneca College of Applied Arts and ) Ann Burke, Counsel
Technology and Karen Murkar, )
Respondents )
1The applicant filed his Application on September 28, 2010 alleging discrimination in employment on the basis of race, place of origin, ethnic origin and age, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The allegations concern two competitions, which took place in 2002 and 2004 respectively, and an ongoing failure to hire the applicant for part-time teaching between January 2008 and the present.
2The respondents filed a Response and a Request for Order During Proceedings (RFOP) in which they asked the Tribunal to dismiss the portion of the Application dealing with the events in 2002 and 2004 for delay, and dismiss the remaining portion of the Application as disclosing no prima facie case. By Interim Decision, 2011 HRTO 148, the Tribunal dismissed the 2002 and 2004 allegations for delay.
3This Interim Decision notes that the applicant indicates in his Application that “females are given priority in assigning courses” and “young faculty were given more load of courses and favoured,” but fails to give further particulars in support of these bald assertions of preferential treatment on the basis of sex and age.
4The applicant was directed to file written submissions setting out the basis on which he makes the assertion that women and younger faculty were given preferential treatment. Both the applicant and the respondents filed written submissions with the Tribunal on the issue of whether the applicant has established a prima facie case.
5In addition, the respondents clarified their earlier Request to have the individual respondent removed as a party to this Application.
Prima Facie Case
6The applicant filed written submissions in which he sets out information concerning what he describes as the increase in the ratio of female to male faculty during the relevant period. Likewise, with respect to the ground of age, the applicant identifies both male and female faculty who were hired during the relevant time period, whom he asserts were mostly younger than him. This is the basis for his claim of age discrimination.
7The remaining portion of his submissions is not responsive to the Tribunal’s direction in that it addresses, again, the respondents’ position with respect to why he was not selected for these positions.
8The respondents state in their submissions that the applicant has filed erroneous tables, which are not supported by the evidence, in his written submissions. However, at this preliminary stage of the proceedings, the applicant is not required to submit evidence. The question of whether the applicant is able to prove his allegation that women and younger persons were disproportionately hired during this period is an issue more appropriately dealt with at a hearing.
9Accordingly, the respondents’ Request to dismiss this portion of the Application is not granted.
Request to Remove Individual Respondent
10The respondents point out that the Tribunal has not ruled on the issue of whether Karen Murkar should be removed as an individual respondent to his Application. This Request was not made clearly in the RFOP, and the applicant did not respond to it in his Reply, nor did the Tribunal identify it as an issue for the applicant to address in his written submissions.
11Given the respondents’ clarification with respect to this issue in their February 18, 2011 written submissions, the applicant is directed to provide written submissions on whether the individual respondent should be removed as a party to this Application. The applicant may wish to refer to the Rule and the principles set out in the cases below in his written submissions.
12Rule 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.
13The Tribunal further expanded on these principles in [Persaud v. Toronto District School Board, 2008 HRTO 31](https://www