Rastin v. Electro-Motive Canada, 2011 HRTO 750

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Greg Rastin

Applicant

-and-

Electro-Motive Canada Co., and

National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW Canada) Local No. 27

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 18, 2011

Citation: 2011 HRTO 750

Indexed as: Rastin v. Electro-Motive Canada

1The applicant filed an Application on February 16, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the area of employment on the basis of disability.

2In a previous Interim Decision, 2010 HRTO 1793, the Tribunal sought submissions regarding whether the applicant’s manager, respondent Steve Rankin, should be removed as a personal respondent. The applicant alleges that Rankin should be maintained as a respondent because Rankin allegedly discriminated against him in the assignment of overtime work and took disciplinary action against him.

DECISION

3Rule 1.7(b) of the Tribunal’s Rules of Procedure provide that in order to ensure a fair, just and expeditious resolution of any matter before it, the Tribunal may add or remove a party.

4The 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 an individual respondent from a proceeding:

1. Is there is 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 is 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?

5The concerns raised in the Application relate to alleged workplace discrimination with respect to overtime assignment which was co-ordinated according to the Collective Agreement between the respondent employer and the applicant’s union.

6I find that, in applying the Persaud factors, the circumstances support the removal of the personal respondent. The allegations with respect to the personal respondent relate directly to his management role with the respondent employer and decisions made in this employment capacity. The respondent employer has agreed to assume responsibility for the actions of the personal respondent should any violations of the Code be determined. Further, no prejudice has been asserted by the applicant in regards to the removal of the personal respondent. All remedies sought by the applicant relate to the respondent employer. In these circumstances, I do not see a compelling reason to continue the Application as against the personal respondent.

7As such, the Tribunal orders that the personal respondent be removed as a party to the Application and the style of cause is amended accordingly.

CONCLUSION

8Given that the parties have indicated that they are amenable to participate in mediation, the Registrar’s Office will contact the parties to schedule a mediation in this matter.

9I am not seized of this matter.