Kumarsingh v. MASCO Retail Cabinet Group LLC, 2012 HRTO 1135

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Kumarsingh

Applicant

-and-

MASCO Retail Cabinet Group LLC and Patrick Jakins

Respondents

AND B E T W E E N

Peter Kumarsingh

Applicant

-and-

MASCO Retail Cabinet Group LLC and Patrick Jakins

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: June 11, 2012

Citation: 2012 HRTO 1135

Indexed as: Kumarsingh v. MASCO Retail Cabinet Group LLC

1This Interim Decision addresses the respondents’ request that a number of personal respondents be removed as parties to the second of these two Applications. For the reasons that follow, the Request is granted.

OVERVIEW OF PROCEEDINGS

2These parties are involved in two outstanding Applications, filed pursuant to section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The first Application, file number 2009-04157-I, was filed on November 23, 2009 (“Application 1”) and alleges discrimination with respect to employment on the basis of race, colour, ancestry, place of origin, ethnic origin, disability and family status. In summary, the applicant alleges that the respondents have subjected him to discrimination by failing to accommodate his special needs arising from his family status and requiring him to travel overnight when his young children need him to be at home. He alleges that the respondents have been accommodating white co-workers, but not him.

4The respondents have filed a Response to Application 1, denying the allegations of discrimination. In an Interim Decision, 2011 HRTO 174, the Tribunal removed all of the personal respondents named in Application 1 except Patrick Jakins. In December 2010, the parties participated in a mediation in Application 1 but were unable to resolve the dispute. Application 1 was scheduled to proceed to hearing in November 2011. In a CAD dated September 9, 2011, the Tribunal adjourned the hearing in Application 1 pending its determination of issues raised in Application 3 (see paragraph 6, below).

5On February 5, 2011, the applicant filed a second Application, file number 2011-08215-I, (“Application 2”) against MASCO Retail Cabinet Group LLC and Patrick Jakins and a number of additional personal respondents. Application 2 was served on the respondents in September 2011. Pursuant to a CAD, the respondents in Application 2 were not required to file a Response.

6In essence, in Application 2, the applicant alleges ongoing failure to accommodate his special needs arising from his family status. He also alleges reprisal. He indicates that his employment with the corporate respondent has ended and alleges that Code-related grounds were a factor in that termination.

7On June 14, 2011, MASCO Retail Cabinet Group LLC and Patrick Jakins filed an Application for contravention of settlement, file number 2011-09178-S (“Application 3”) against Peter Kumarsingh. In Decision 2011 HRTO 2303, the Tribunal dismissed Application 3. It held that there was no settlement agreement between the parties within the meaning of section 45.9 of the Code.

8In a Case Assessment Direction dated December 23, 2011, the Tribunal directed the respondents to file a Response to Application 2. The Tribunal also invited submissions from the parties regarding whether Application 1 and Application 2 ought to be consolidated and heard together.

9In an Interim Decision dated January 26, 2011, I ordered the consolidation of the two Applications: 2012 HRTO 725. I wrote:

The respondents have filed a Response to Application 2 and the applicant has filed a Reply. In the materials filed with the Tribunal, neither party has taken a position in regards to consolidation.

10In fact, the respondents had filed submissions on January 20, 2012 in relation to the December 23, 2011 CAD. In those submissions, the respondents argued that consolidation is appropriate. They also argue that the personal respondents in Application 2 should be removed as parties.

11On January 30, 2012, the applicant filed written submissions objecting to the removal of the personal respondents to Application 2. The applicant’s January 30, 2012 submissions do not relate to the consolidation issue raised in the December 23, 2012 CAD.

12Because of an error, the respondent’s January 20, 2012 submissions were before me when I rendered my January 26, 2012 Interim Decision.

13I have now reviewed the respondent’s submissions of January 20, 2012, the applicant’s submissions of January 30, 2012 and the respondent’s letter of April 25, 2012. In light of these submissions, there is not basis to alter my conclusion regarding consolidation. I note that only the respondents filed submissions in response to the December 23, 2011 CAD. They argued in favour of the Applications being consolidated and, in their letter of April 25, 2012, their counsel notes that they to not take issue with my decision in this regard. The applicant did not make any submissions in regards to the consolidation issue.

14The sole purpose of this Interim Decision is to address the respondents’ request that the personal respondents be removed as parties to Application 2.

ANALYSIS

15Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed including:

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 Codeinfringement?

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?

16The respondents submit that all the factors outlined above support removal of all of the personal respondents who were named in Application 2. They argue that the Tribunal has already seen fit to remove all but one of the personal respondents in Application 1. The respondents argue that Application 2 contains no allegations against Mr. Williams or Mr. Vojtushan and that any allegations against the remaining personal respondents relate to actions that fall within the scope of their employment. The corporate respondent accepts its vicarious liability for the actions of the personal respondents, and states that it can provide the remedies requested if the Tribunal finds discrimination in this case. The respondents further argue that no conduct of a personal respondent is a central issue to the Application.

17The applicant has filed written submissions objecting to the removal of the personal respondents. He states that each of them committed acts of reprisal, including excluding him from conference calls, requiring him to travel, and ultimately terminating his employment.

18With regards to the personal respondents, Ryan, Vojtush, and Williams, I am satisfied that the factors set out in Perausd have been met. To the extent that the applicant alleges these personal respondents have committed acts of reprisals, those the acts were committed in the context of their employment, the corporate respondent has accepted that it is vicariously liable for their conduct. The applicant has not raised any concerns about the corporate respondent’s ability to respond to or remedy the allegations of discrimination nor has he claimed that he would be prejudiced by their removal. Further, there is no basis to conclude that the conduct of these personal respondents is so central to the issues in this case that they should remain as parties to Application 2.

19In the Interim Decision removing the personal respondents to Application 1, the Tribunal found that Mr. Jakins’ conduct may be a central issue in that case: 2011 HRTO 174,. It concluded that, at such a preliminary stage of the proceedings, it was not appropriate to remove him as a personal respondent. I find that the same considerations apply in regards to Application 2 and that it is not appropriate to remove Mr. Jakins as a personal respondent to Application 2 at this stage of the proceedings.

20The style of cause of Application 2 is amended so that the only personal respondent remaining is Mr. Jakins.

SUMMARY

21With the exception of Mr. Jakins, the personal respondents named in Application 2 are removed as parties to the proceeding.

22I am not seized of these matters.