Nye v. McMaster University, 2012 HRTO 2285

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Nye

Applicant

-and-

McMaster University and Dr. Saeid Habibi

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: December 5, 2012

Citation: 2012 HRTO 2285

Indexed as: Nye v. McMaster University

WRITTEN SUBMISSIONS

Timothy Nye, Applicant

Stephen Moreau, Counsel

McMaster University, Respondent

George Avraam, Counsel

Mile Komlen, Respondent

Andrew Pinto, Counsel

1This is an Application filed on September 21, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability. This Interim Decision addresses the respondents’ request to remove Saeid Habibi, David Wilkinson, Ilene-Busch-Vishniac and Mile Komlen as respondents.

2At all material times the applicant was an Associate Professor in the Department of Mechanical Engineering at McMaster University. Dr. Habibi was the Chair of the Department of Mechanical Engineering and the applicant’s direct supervisor. Dr. Wilkinson was the Dean of the Faculty of Engineering. Dr. Busch-Vishniac was the Provost and Vice-President (Academic) of McMaster University. Mr. Komlen was the Director of McMaster’s Office of Human Rights and Equity Services.

3The Application alleges that the respondents failed to provide him with needed accommodation. It alleges that the applicant initially attempted to arrange for this accommodation with Dr. Habibi, that he then sought the intervention of Mr. Komlen in an effort to facilitate a resolution of his request for accommodation and later had to make a formal complaint about not receiving appropriate accommodation to Dr. Wilkinson and Dr. Busch-Vishniac which proved unsuccessful.

4The institutional respondent, Dr. Habibi, Dr. Wilkinson, Dr. Busch-Vishniac filed a Request for an Order During Proceedings (RFOP) on October 11, 2012 requesting that Dr. Habibi, Dr. Wilkinson, Dr. Busch-Vishniac be removed as respondents. Mr. Komlen, filed an RFOP on January 10, 2012 requesting that he be removed as a respondent. The applicant filed Responses on February 29, 2012 opposing the respondents’ RFOPs.

5Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In assessing the respondent’s request I have adopted the principles and considered the key factors for removing personal respondents that were enunciated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31. In Sigrist the Tribunal stated:

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. (para 42)

6In Persaud the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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 [is] 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 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? (para 5)

7The institutional respondent, Dr. Habibi, Dr. Wilkinson and Dr. Busch-Vishniac submit that the institutional respondent will accept vicarious liability for each of these three named individuals, that each of these individuals was, at the material time, acting within the scope of their employment and that the applicant is only seeking institutional remedies in his Application. The respondents submit that each of these individuals will still participate in the process as witnesses. The respondents submit that the failure to remove these individuals as respondents will unnecessarily complicate the proceedings.

8The respondent, Mr. Komlen, states in his RFOP that he relies on his Response filed on Dec 19, 2011. He submits that the nature of Mr. Komlen’s role as Director of Human Rights and Equity Services for the institutional respondent and the neutral role he played in attempting to facilitate an informal resolution of the applicant’s allegations of discriminatory treatment do not constitute discrimination or harassment under the Code. He submits that he should not have been named a respondent. In a letter dated March 15, 2012, the institutional respondent wrote to the Tribunal to clarify that it accepts vicarious liability for the alleged actions of Mr. Komlen.

9The applicant submits, pursuant to the criteria normally considered by the Tribunal in Persaud, that Dr. Habibi, Dr. Wilkinson and Dr. Busch-Vishniac should continue to be named respondents. He submits that even if the first three criteria in Persaud would appear to favour removing these personal respondents that the fourth and fifth factors do not. He submits that the conduct of all three of these personal respondents is central to the applicant’s case, that all three were involved in instances of direct discrimination of the applicant and that the applicant intends to seek remedies against each of these three individuals. The applicant submits these are compelling reasons for continuing the proceedings against these three individuals.

10In addition the applicant submits that Dr. Habibi subjected him to harassing treatment and that this type of conduct could lead to a finding of personal liability that the institutional respondent would not be held liable for. The applicant submits that he would be prejudiced if he did not have the opportunity to pursue remedies against all of these individuals.

11The applicant disputes the respondents’ contention that a failure to remove these three personal respondents would cause an unnecessary complication given that the intention is for all three of these individuals to participate in the hearing as witnesses.

12The applicant submits that Mr. Komlen should remain a respondent. He submits that in his Response Mr. Komlen described himself as independent of the institutional respondent and consequently he should not be considered to be acting as an agent of the institutional respondent. The applicant submits Mr. Komen’s actions are central to the applicant’s allegations, that if allegations against Mr. Komlen are proven that the applicant will seek individual remedies against Mr. Komlen and that Mr. Komlen continuing as a respondent will not add to the complexity of the case.

13In a letter dated November 7, 2012 the applicant indicated a concern that one of the named personal respondents, Dr. Busch-Vishniac, was no longer an employee of the institutional respondent and as a consequence the institutional respondent could no longer assert that all the named personal respondents would participate in the hearing as witnesses and be available to testify. In a letter dated November 9, 2012 the institutional respondent indicated that although Dr. Busch-Vishniac was no longer an employee and now lived in Saskatchewan that she had agreed to testify.

DECISION

14I agree that the first three criteria outlined in Persaud favour removal of the personal respondents. The institutional respondent has accepted responsibility for the alleged conduct of all of these individuals and I am satisfied that there is no issue about the institutional respondent’s ability to respond to, or remedy, the alleged acts of discrimination. And having reviewed the submissions and the material before me, including the allegations made by the applicant and relief requested I am satisfied that Dr. Wilkinson, Dr. Busch-Vishniac and Mr. Komlen should be removed as respondents. I am satisfied that Dr. Wilkinson, Dr. Busch-Vishniac and Mr. Komlen were acting within the course of their employment and their specific job responsibilities and consequently they would not be held personally liable for their actions in the event that a violation of the Code was found. The fact that the applicant has submitted that he would pursue remedies against these individual respondents does not persuade me that under the circumstances such remedies would be ordered if a violation of the Code was found in relation to the actions of these three individuals. I am of the further view that the actions of these individuals, all of whom are asked to intercede in the applicant’s ongoing disagreements with Dr. Habibi are not the central focus of the allegations raised in the Application. I see no compelling reason to keep these individuals as respondents.

15However, I do find that Dr Habibi’s alleged actions are the central concern raised in the applicant’s Application. More importantly, for the purposes of this decision, I find that the allegations against Dr. Habibi clearly include allegations of harassment. These allegations could result in a remedy specifically against Dr. Habibi in the event a violation of the Code is found. As a consequence Dr. Habibi will not be removed as a respondent at this time.

16I am not seized of this matter.

ORDER

1. I order David Wilkinson, Ilene-Busch-Vishniac and Miles Komlen removed as personal respondents and the style of cause amended accordingly.