Knoll v. O. Bettschen Construction Ltd., 2012 HRTO 764

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Knoll

Applicant

-and-

O. Bettschen Construction Ltd.

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: April 16, 2012

Citation: 2012 HRTO 764

Indexed as: Knoll v. O. Bettschen Construction Ltd.

1In this Application, filed on July 22, 2011 under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent discriminated against him on the basis of disability with respect to employment when it terminated his employment, among other things.

2The applicant named the manager of the corporate respondent, David Bettschen, as a personal respondent to the Application.

3This Interim Decision addresses a Request for an Order during Proceedings filed on behalf of the corporate respondent and David Bettschen, seeking to have Mr. Bettschen removed as a personal respondent to the Application (“the Request”).

4The applicant has not filed a response to the Request.

5Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party to an Application. 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 46.3(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.

6The 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:

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 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?

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.

7In this case, there is nothing to suggest that the personal respondent was acting in anything other than the course of his duties as manager of the corporate respondent in his interactions with the applicant. Moreover, there is no question that the corporate respondent is liable for the personal respondent’s actions in the event that the personal respondent is found to have done anything that infringed the applicant’s rights under the Code. There is no allegation that the corporate respondent would be unable to remedy the alleged infringement of the applicant’s rights under the Code as a result of the personal respondent’s actions. Moreover, the applicant has not opposed the removal of the personal respondent or indicated that he would be prejudiced in any way by the removal of the personal respondent as a party to the proceeding. In the circumstances, it is appropriate to remove the personal respondent as a party to the proceeding and the style of cause is amended accordingly.

ORDERS/DIRECTIONS

1. David Bettschen is removed as a respondent to the Application and the style of cause amended accordingly.