HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carlito Gomes
Applicant
-and-
Skyline Boutique Hotels & Resorts Inc. and Nihal Taha
Respondents
INTERIM DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: Gomes v. Skyline Boutique Hotels & Resorts Inc.
WRITTEN SUBMISSIONS
Carlito Gomes, Applicant
Self-represented
Skyline Boutique Hotels & Resorts Inc., Gil Blutrich, Laurence Roptus, Pearl Rossouw and Sarah Jaikishun, Respondents
Katherine E. Ford, Counsel
Nihal Taha, Respondent, Respondent
Self-represented
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, ancestry, place of origin, citizenship, family status, marital status as well as reprisal.
2The purpose of this Interim Decision is to deal with the corporate respondent’s Request for Order During Proceedings requesting an Order removing four personal respondents Gill Blutrich, Laurence Roptus, Pearl Rossouw and Sarah Jaikishun, (collectively “the four personal respondents”) as parties.
3The applicant argues that the four personal respondents should remain parties. He claims that they were employees of the corporate respondent and that it was their wrongful conduct that ultimately forced the applicant to resign from the employ of the corporate respondent.
4Pursuant to Rule 1.7 (b) of the Tribunal’s Rules, the Tribunal has the power to add or remove a party. The Tribunal reviewed its approach to the issue of whether an individual is properly named as a personal respondent in Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155 at paragraphs 6 – 8:
6……..The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent Tribunal decisions including Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14 and Persaud v. Toronto District School Board, , 2008 HRTO 31, 2008 HRTO 31).
7In Sigrist the Tribunal set out the general approach to this issue, stating as follows (para. 42) :
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.
8In Persaud, the Tribunal identified a list of factors to consider when determining whether a personal respondent should be removed (para. 5):
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
12The corporate respondent submits that a consideration of all the factors referred to in Persuad support the request to remove the four personal respondents: the corporate respondent is prepared to accept any potential liability on behalf of the four personal respondents; it can respond to and remedy the applicant’s complaints; there is no compelling reason to continue proceedings against the four personal respondents; there is no prejudice to the applicant if the four personal respondents are removed.
13In essence, the applicant submits that if the four personal respondents are removed they will avoid accountability and liability for their actions and that this would be prejudicial to him.
14I am satisfied, having considered the factors outlined in Persaud that the four personal respondents should be removed. I am satisfied that the first three factors identified in Persaud favour the removal of the four personal respondents. In considering the fourth and fifth factors identified in Persaud I accept that the four personal respondents may have had some interaction with the applicant, however, there is no suggestion that they acted independently or outside the course of their job responsibilities. Consequently, I am satisfied that the four personal respondents would not be held personally liable for their actions. I do not see any prejudice to the applicant in terms of proceeding with his Application or receiving remedies if the four personal respondents were removed from the Application.
ORDER
15The corporate respondent’s request to remove Gil Blutrich, Laurence Roptus, Pearl Rossouw and Sarah Jaikishun as personal respondents is granted. The style of cause is amended accordingly.
16I am not seized.
Dated at Toronto, this 6th day of June, 2012.
“Signed by”
Keith Brennenstuhl
Vice-chair