HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lorraine Bailey-Shillingford
Applicant
-and-
Staples Canada Inc., Steve Matyas, Jot Toor and Esther Keta
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Bailey-Shillingford v. Staples Canada Inc.
APPEARANCES
Lorraine Bailey-Shillingford, Applicant
Cecil Norman, Representative
Staples Canada Inc., Steve Matyas, Jot Toor and Esther Keta, Respondents
Andrea M. Habas, Counsel
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 with respect to employment because of race, colour, ancestry, place of origin, and ethnic origin. The respondents have filed a common Response denying the allegations of discrimination.
2In a Case Assessment Direction dated March 23, 2012, the Tribunal granted the respondents’ Request for a Summary Hearing and directed that a conference call hearing be scheduled.
3On June 4, 2012, the parties participated in the teleconference summary hearing. During the course of the hearing, the applicant, for the first time raised specific allegations of discrimination and harassment which were not particularized in the Application. In fairness to the respondents, who were hearing these allegations for the first time, I adjourned the conference call and directed the applicant to provide written particulars of these allegations.
4On June 8, 2012, the applicant delivered and filed these written particulars. On June 12, 2012, the respondents withdrew their Request for a summary hearing against all of the respondents except for Mr. Steve Matyas.
5The summary hearing was reconvened on June 12, 2012, and the sole issue before the Tribunal was whether the Application as against the personal respondent Steve Matyas had a reasonable prospect of success.
6The Application does not allege any specific incidents of harassment and discrimination against Mr. Matyas. The applicant conceded that she never complained to Mr. Matyas nor did she have any evidence to suggest that he had any involvement or knowledge of any issues raised in her Application.
7During the conference call, the applicant took the position that Mr. Matyas, as President of the corporate respondent should have been aware of the applicant’s allegations and that he should be held personally liable for any damages. Further, the Tribunal should not remove Mr. Matyas as a respondent because all of the factors in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), had not been met because the corporate respondent had not accepted liability for his conduct.
8The respondents argued in the Application, that the only reason that Mr. Matyas was added as a respondent was to “exert unwarranted pressure”. The respondents maintained that Mr. Matyas had no involvement with the applicant’s employment. With respect to Persuad, the respondents argued that there simply were no allegations made against Mr. Matyas for which the company had to accept liability.
Decision
9Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
10In Persaud, at para. 4, the Tribunal reiterated its concern about the “unnecessary naming of personal respondents” and offered a framework for considering whether to remove personal respondents:
…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
b. 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?
c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
d. 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?
e. 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.
11I have considered, the materials and the submissions of the parties, and I find that this Application has no reasonable prospect of success against Mr. Matyas for the reasons that follow. In determining whether this Application has a reasonable likelihood of success against this individual respondent I am also guided by the principles in Persuad.
12The applicant is seeking, in this case, to reverse the vicarious liability sections in the Code, and to impose liability on Mr. Matyas because he is the President of the corporate respondent. The applicant does not allege that Mr. Matyas was in any way involved with the applicant’s interaction with the company, or otherwise conducted himself in a discriminatory manner. He is named as a respondent solely because he is the President of the corporate respondent. This is an insufficient basis for naming Mr. Matyas as a respondent. With respect to the applicant’s argument that the Company has not “accepted liability” for Mr. Matyas’s conduct I note that are no particulars in the Application of any conduct by Mr. Matayas and as such, there is no conduct for which the corporate respondent has to accept liability.
13Since this Application contains no allegations that he conducted himself in a discriminatory manner, this Application has no reasonable prospect of success as against Steve Matyas.
Order
14The Tribunal orders as follows;
a. The Application is dismissed as against Steve Matyas and the style of cause will be amended to remove him as a respondent in any future decision; and
b. The respondents shall have 30 days from the date of an unsuccessful mediation to file a response to the particulars filed by the applicant on June 8, 2012.
15I am not seized.
Dated at Toronto, this 11th day of September, 2012.
“Signed by”
Geneviève Debané
Vice-chair