HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
René Laviolette
Applicant
-and-
City of Ottawa
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Laviolette v. City of Ottawa
WRITTEN SUBMISSIONS
René Laviolette, Applicant
Self-represented
City of Ottawa, Respondent
Christine Enta, 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”).
2This Interim Decision deals with the following:
a. The City of Ottawa’s Request for an Order During Proceedings to remove the individual respondent (the “Request for order”); and
b. The City of Ottawa’s Request to dismiss the Application.
Background
3The applicant filed the Application on June 26, 2012 against the individual respondent, Garry Langford and did not name his employer the City of Ottawa as a respondent. The applicant alleges that he was discriminated against during the course of his employment on the basis of his disability.
4The City of Ottawa filed a Response on October 12, 2012 adding itself as a respondent to the Application, taking the position that it was the proper respondent since it is the applicant’s employer and that Mr. Langford was acting within the scope of his duties. In this common Response the City of Ottawa raised the issue that the Application should be dismissed on the basis that the applicant and his bargaining agent, the Canadian Union of Public Employees, Local 503, executed Minutes of Settlement on October 25, 2011 at an arbitration hearing.
5The City of Ottawa also filed the Request for order seeking the removal of Mr. Langford as a respondent on October 15, 2012.
6The applicant has filed submissions opposing both the Request for order and the Request to dismiss the Application.
The Request for Order
7Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 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.
8The 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:
- If there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
- If 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?
- If 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?
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.
9Having reviewed the submissions of the parties, the Tribunal finds that all of the factors in Persaud have been met. significantly, the City of Ottawa is vicariously liable for and has accepted liability for the conduct of Mr. Langford. In my view, considering all the circumstances, it is not necessary to involve Mr. Langford as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application. Accordingly, Mr. Langford shall be removed as a personal respondent and the style of cause shall be accordingly amended.
Request to Dismiss
10Section 45. 1 of the Code states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application”.
11In these circumstances it is appropriate to convene a conference call hearing to determine whether the substance of the Application has been appropriately dealt with, in whole or in part, in another proceeding and/or whether in light of the Minutes of Settlement it would be an abuse of process for the applicant to proceed with this Application.
Delay
12Having reviewed the Application it appears that some of the allegations may be untimely. Section 34 (1) and (2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) read as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
13The parties may make submissions at the preliminary hearing on whether the Application is outside the Tribunal’s jurisdiction for this reason.
Orders
14The Tribunal orders:
a. The Request for order is granted and Garry Langford is removed as a respondent to the Application and that the style of cause shall be immediately amended to remove his name;
b. The Registrar will schedule a half-day preliminary hearing by teleconference. The applicant will proceed first during this preliminary hearing. The applicant shall make argument about why the Application should not be dismissed on the basis of delay or pursuant to section 45.1 of the Code or as an abuse of process; and
c. A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference; and a copy of this Interim Decision shall be sent to the Canadian Union of Public Employees, Local 503 and if the wish to participate in this matter it must file a Request to intervene within 14 days of the date of this Interim Decision.
15I am not seized.
Dated at Toronto, this 14th day of November, 2012.
“signed by”
Geneviève Debané
Vice-chair