Mcleod v. Vale Inco, 2012 HRTO 318

Human Rights Tribunal of Ontario

B E T W E E N:

Chad Mcleod

Applicant

-and-

Vale Inco Limited and Claire Parkinson

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith Date: February 14, 2012 Citation: 2012 HRTO 318 Indexed as: Mcleod v. Vale Inco

WRITTEN SUBMISSIONS BY:

Chad Mcleod, Applicant ) Self-Represented

Vale Inco Limited and ) Kevin Inwood, Counsel Claire Parkinson, Respondents )

BACKGROUND

1The applicant filed this Application on February 16, 2011, alleging discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). On December 7, 2010, the applicant filed an application to the Ontario Labour Relations Board ("OLRB") alleging a violation of s. 50 of the Occupational Health and Safety Act, R.S.O. 1990 c. O.1 (the "OHSA").

2In a previous Interim Decision, 2011 HRTO 897, the Tribunal deferred this Application pending the conclusion of a hearing before the Ontario Labour Relations Board ("OLRB"). That proceeding has now concluded through the withdrawal of the OLRB application on August 23, 2011.

3On August 30, 2011, the applicant filed a Request to proceed under Tribunal Rule 14.3.

4On April 13, 2011, the applicant filed a Request for Order During Proceedings (Tribunal Form 10) asking to amend the Application to include Daniel Seguin as a respondent to the proceedings. This Interim Decision deals with that Request.

5The Form 10 of April 13, 2011, did not provide any specifics with regard to why Mr. Seguin should be added as a respondent, other than the following general allegations:

The respondents Vale Inco Limited, Claire Parkinson and Daniel Seguin have participated in ongoing discriminatory practices regarding my recognized disability including, harassment, degradation of character, demeaning and vexatious comments including spreading rumors and threatening my employment status (up to and including lay-off)….

6In a subsequent Interim Decision, 2011 HRTO 1959, I granted the applicant's request to proceed and required the respondents to file a Response. I also invited the respondent and Daniel Seguin to file with the Tribunal and deliver to the parties any submissions with regard to the applicant's request to have Mr. Seguin added as a respondent.

7The respondents filed a Response to the Application on December 8, 2011, but made no submissions with regard to the request to add Mr. Seguin as a party. However, the Response does note the fact that Mr. Seguin was the applicant's supervisor during the time period dealt with in the Application.

8No submissions were received from Mr. Seguin.

REQUEST TO ADD A PERSONAL RESPONDENT

9Rule 1.7(c) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party.

10However, the Tribunal will not add a proposed party in a perfunctory manner or as a matter of formality: Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, Santo and Claman v. Toronto Police Services Board, 2008 HRTO 56 and Abi-Mansour v. Halton District School Board, 2010 HRTO 767. Rather, it will decide whether it is appropriate to do so based on the parties' materials and arguments: see Payne v. Ontario (Board of Inquiry, Human Rights Code) [2000] O.J. No.1896 (Ont. Div. Ct.) (QL) at para. 4, and Greenhorn and Abi-Mansour, above.

11The Tribunal has removed or refused to add personal respondents when the alleged actions and omissions of the proposed personal respondent were carried out strictly in their capacity as officers or employees of the corporate respondent and their personal conduct was not in issue. See for example, Sigrist and Carson v. London Catholic District School Board, 2008 HRTO 14, Persaud v. Toronto District School Board, 2008 HRTO 31, and Lawrence v. Toronto Police Services Board, 2010 HRTO 161, and Chalifoux v. Achievement House, 2010 2011 HRTO 1330. In the present case, there is no suggestion in the parties' materials that Mr. Seguin's interaction with the applicant could be characterized as outside his capacity as a supervisor of the respondent employer.

12Also, as appears again to be the situation in the present case, the Tribunal has expressed concern about the unnecessary naming of personal respondents in Applications where there is an organizational or corporate respondent who is also liable for the alleged infringement of the applicant's rights and is in a position to satisfy any remedies ordered in the case. As stated in Sigrist and Carson, above,

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.

13Given the fact that there is a corporate employer respondent and that the applicant has not provided a compelling juridical reason to include a further personal respondent as outlined in Sigrist and Carson above, I do not find it appropriate to add Mr. Seguin as a party in this case.

ORDER

14The request to add Daniel Seguin as a respondent party is denied.

15The Application will proceed.

16I am not seized of this matter.