Paul Rodriques v. Toronto Community Housing Corporation, 2011 HRTO 987

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Rodriques

Applicant

-and-

Toronto Community Housing Corporation

Respondent

interim decision

Adjudicator: Keith Brennenstuhl

Date: May 25, 2011

Citation: 2011 HRTO 987

Indexed as: Rodriques v. Toronto Community Housing Corporation

WRITTEN SUBMISSIONS

Paul Rodriques, Applicant ) Glen Morrison, Representative

Toronto Community Housing Corporation ) William M. LeMay, Counsel

1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of race, colour, place of origin and reprisal or threat of reprisal in the area of employment.

2In essence, the Application alleges differential treatment in his employment with the corporate respondent at the hands of the personal respondent, Sam Licata, who, as senior superintendent, was responsible for providing the applicant with work direction and for monitoring his work performance.

3On December 21, 2009, the respondents brought a Request for Order During Proceedings (Form 10) asking the Tribunal to remove the personal respondent on the basis that he was not a necessary party, given the corporate respondent’s position that the personal respondent was acting within the scope of his employment at all material times.

4The applicant filed a Response to Request for Order on December 30, 2009, objecting to the removal of the personal respondent.

ANALYSIS AND DECISION

5Rule 1.7(b) provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO14 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 personal respondent should be removed as a party to the Application.

8In his Response, the applicant submits that since “the conduct of the personal respondent is the central issues (sic) in this matter” the personal respondent should remain a party to the Application.

9It may be that the actions or decisions of the personal respondent are relevant to the issues in the Application but decisions or actions taken by corporate respondents are necessarily effected through individual employees acting in the course of their employment. Although the applicant’s allegations impugn the conduct of the personal respondent, the overarching claim is one based on a pattern of alleged discrimination by various policies and decisions of the corporate respondent as a whole.

10If the personal respondent is not called as a witness in the Tribunal hearing by the corporate respondent, it is open to the applicant to summons the personal respondent to a hearing pursuant to Tribunal Rule 3.

11Applying all of the factors set out in Persaud, I find that the personal respondent should be removed as a party 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 respondent, Sam Licata, is removed as a party to the Application and the style of cause amended accordingly.

13I am not seized.