HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dubravko Cvetkovic
Applicant
-and-
United Brotherhood of Carpenters and Joiners of America Local 675
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Cvetkovic v. United Brotherhood of Carpenters and Joiners of America Local 675
WRITTEN SUBMISSIONS
Dubravko Cvetkovic, Applicant ) Self-represented
United Brotherhood of Carpenters and ) John Moszynski, Counsel Joiners of America Local 675, Marie Kellar ) and Tony Iannuzzi, Respondents )
1This Application was filed on June 20, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination with respect to employment because of age. The Application originally named the organizational respondent and two personal respondents.
2A joint Response was filed by the respondents on September 20, 2011, wherein they requested that the two personal respondents be removed from the Application. On October 4, 2011, the respondents filed a Request for an Order During Proceedings (“Request”) reiterating their request that the personal respondents be removed from the Application because the alleged acts which the applicant attributes to the personal respondents were undertaken by both individuals in their employment capacity on behalf of the organizational respondent.
3The applicant filed a Reply on October 14, 2011. The applicant maintains that all of the respondents discriminated against him. In essence, the applicant alleges that personal respondents as the organization’s president and dispatcher refused to assign him work because they perceived him to be too old.
REQUEST TO REMOVE PERSONAL RESPONDENTS
4In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of “non-exhaustive” factors in considering whether a personal respondent should be removed:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there 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?
5I find that the above-noted factors favour removal of the personal respondents. Based on the parties’ submissions, it appears that one personal respondent is an executive member and the other personal respondent is a staff person of the organizational respondent. It appears that all of the allegations with respect to these individuals relate to actions or omissions during the regular course of their work on behalf of the organizational respondent.
6In my view, considering all the circumstances, it is not necessary to involve the two named individuals as personal respondents in order to have a fair, just and expeditious resolution of the merits of the Application. Nothing in the materials suggests that the organizational respondent lacks the ability to respond to or remedy the alleged Code infringements. I accept the respondents’ submissions that the allegations pertain to the individuals acting in the course of their employment and not in their personal capacities. I find that, given that the organizational respondent acknowledges that the personal respondents were acting in the course of their duties as its representative and agent, the organizational respondent may be held - responsible if a violation is found to have occurred in that regard. I further find that no significant prejudice would result to the applicant if the personal respondents are removed. As such, I determine that it is appropriate to remove the personal respondents from the proceedings at this time.
7The respondents’ Request to remove the personal respondents as parties to the Application is therefore granted.
8The Tribunal orders that the style of cause is amended to remove the two personal respondents.
9I am not seized.
Dated at Toronto, this 20th day of March, 2012.
”signed by”___________
Ena Chadha
Vice-chair