Fazleabbas Gulamhusein v. Micro Fidelio Canada Ltd., 2011 HRTO 678

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fazleabbas Gulamhusein Applicant

-and-

Micro Fidelio Canada Ltd. Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith Date: April 8, 2011 Citation: 2011 HRTO 678 Indexed as: Gulamhusein v. Micro Fidelio Canada

WRITTEN SUBMISSIONS

Fazleabbas Habib Gulamhusein, Applicant, Self-represented Micro Fidelio Canada Ltd., Frank Quattrociocchi, Paul Perri and Susan Bridgewater, Respondents, Gita Anand, Counsel

Background

1The applicant filed an Application on December 15, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which he alleges discrimination on the basis of race, colour, ethnic origin, disability, creed and reprisal in the context of employment.

2In essence, the Application alleges differential treatment culminating in the respondent employer unfairly terminated the applicant’s employment.

3On March 2, 2010, the respondents brought a Request for Order During Proceedings (Form 10) asking the Tribunal to remove the three personal respondents on the basis that they were not necessary parties, given the corporate respondent’s position that they were acting within the scope of their employment at all material times.

4The applicant filed a Response to Request for Order on March 16, 2010, objecting to the removal of the personal respondents.

ANALYSIS AND DECISION

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, 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:

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?

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.

7The respondents argue that all five parts of the Persaud test have been met and the two personal respondents should be removed as parties to the Application.

8In his Reply the applicant appears to submit the following reasons for maintaining the personal respondents:

All respondents were some way or the other responsible for the discrimination whether under the management position or on personal level. This will only be determined and ruled out by the Human Rights Tribunal up the hearing the case and I will only be able to prove my case in their presence at the time of hearing in person.

9The applicant’s argument can not succeed. It may be that the actions or decisions of the personal respondents are relevant to the issues in the Application, but this is true of many applications in which responsibility ultimately rests with a corporate respondent. Decisions or actions taken by corporate respondents are necessarily effected through individual employees or officers, acting in the course of their employment. In that regard, although the applicant’s allegations impugn the conduct of the individual respondents, the overarching claim is one based on a pattern of alleged discrimination by various policies and decisions of the corporate respondent as a whole. Therefore, removal of the personal respondents as parties to the Application in no way sanctions the alleged acts of discrimination committed by those individuals in the course of their employment.

10If the personal respondents are not called as witnesses in the Tribunal hearing by the corporate respondent it is open to the applicant to summon them to a hearing pursuant to Tribunal Rule 3.

11In sum, applying all the factors set out in Persaud, I find that all the personal respondents should be removed as parties to the Application. There is no issue of the corporate respondent’s ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal.

Order

12The personal respondents are removed as parties to the Application and the style of cause amended accordingly.

13I am not seized.