Chevalier v. A.P. Plasman Inc., 2013 HRTO 1030

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Daniel Chevalier

Applicant

-and-

A.P. Plasman Inc.

Respondent

INTERIM DECISION

Adjudicator: Maureen Doyle
Date: June 10, 2013
Citation: 2013 HRTO 1030
Indexed as: Chevalier v. A.P. Plasman Inc.

WRITTEN SUBMISSIONS

Daniel Chevalier, Applicant Christine Lundy, Representative

A.P. Plasman Inc., Donna Lajoie, Donna Pocock, Brandy Seiben, Sean Dolan, and Chris Platjouw, Respondents David Amyot, Counsel

Introduction

1This is an Application filed under s. 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 disability.

2The applicant alleges that he has not been provided with accommodation for his disability at the workplace and he makes several allegations against the individual respondents regarding their interactions with him in the workplace. On the Application form, he indicates that the way in which he feels he was discriminated against was “in being denied necessary accommodation or modified work in the workplace” and also in “rate of pay, overtime, hours of work or holiday”. He alleges that the date of the last event was September 13, 2011, when he received correspondence from the Workplace Safety and Insurance Board (“WSIB”).

3By way of remedy, he seeks financial compensation in respect of lost earnings, as well as “injury to self-respect, feelings and dignity”, “aggravation of disability due to failure to accommodate”, and “anxiety and stress”. Further, he seeks accommodation from the corporate respondent “up to the point of undue hardship”, letters of apology from the individual respondents, the implementation of policies and procedures by the corporate respondent regarding accommodation to the point of undue hardship, training in human rights for all managers, supervisors and human resources staff at the corporate respondent, and information regarding human rights to be posted at the premises of the corporate respondent.

4The respondents filed a Response in which they deny discrimination contrary to the Code and assert that the applicant has been provided with accommodated work. They also indicate that the individual respondents were either human resources staff or supervisory personnel of the corporate respondent during the time period relevant to the Application.

5The Tribunal has issued a Notice of Hearing in this matter and the hearing is scheduled for November 12, 13, and 14, 2013.

6The respondents have filed a Request for an Order During Proceedings (“RFOP”) requesting that the individual respondents be removed as parties to this Application and requesting that the applicant be directed to provide further particulars of the allegations contained in the Application, including the allegation that he was discriminated against in rate of pay, overtime, hours of work, and holidays, and the allegation that the date of the last event when he alleges discrimination was September 13, 2011.

7The applicant has filed a Response to the RFOP, objecting to the removal of the personal respondents as parties and objecting to the request that he be directed to provide further particulars.

Request to Remove the Individual Respondents

8Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 (“Sigrist and Carson v. London District Catholic School Board”), 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.

9The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud v. Toronto District School Board”) 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.

10The respondents submit that the individual respondents were acting within the scope of their job responsibilities, there are no issues with respect to the corporate respondent’s vicarious liability for their actions, and that the corporate respondent is in the best position to respond to the allegations, and if necessary, to remedy any violations. The corporate respondent also submits that there is no compelling reason to continue proceedings as against the individual respondents, the applicant would suffer no prejudice by their removal as parties, and to retain the personal respondents as parties would unnecessarily add to the complexity of the proceedings. The corporate respondent cites several Tribunal decisions, including Sigrist and Carson v. London District Catholic School Board and Persaud v. Toronto District School Board.

11The applicant submits that the individual respondents must be “held responsible for their actions” and that they were “not acting in accordance with their duties as employees of the organization [sic] respondent”. He submits that he would “experience prejudice to his ability to present his experience of discrimination in his place of employment if he cannot hold the individuals…to account” and that it would “prejudice his search for a fully satisfactory remedy for himself and to prevent future such occurrences”.

12I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve the individual respondents as parties in order to have a fair, just, and expeditious resolution of the merits of the Application. The applicant is clearly not happy with his interactions with the individual respondents through the course of his dealings with them regarding accommodation in the workplace. In his Application, the applicant alleges that he has been discriminated against “in being denied necessary accommodation or modified work in the workplace” and also in “rate of pay, overtime, hours of work or holiday”.

13The corporate respondent has been named in these proceedings and accepts that there is no issue with regard to its liability for the conduct of the individual respondents. It is the corporate respondent who is in the best position to respond to or to remedy the alleged failure to provide the applicant necessary accommodation, and to respond to or remedy the alleged discrimination in rate of pay, overtime, hours of work, or holiday. I am not satisfied that there is a compelling juridical reason to retain the individual respondents as parties. Though the applicant submits that removal of the individual respondents as parties is prejudicial to his ability to “present his experience of discrimination”, I am not persuaded that the individuals need be parties to this Application for the applicant to be able to present his case or to obtain a remedy if a violation of the Code is found to have occurred. Further, retaining the individual respondents as parties would serve to add to the complexity of the proceedings, unnecessarily.

14The respondents’ request to remove Donna Lajoie, Donna Pocock, Brandy Sieben, Sean Dolan, and Chris Platjouw as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.

Regarding request for particulars

15With respect to the request for an order that the applicant provide further particulars, the respondents submit that the allegations in the Application are vague and do not clearly set out the way in which the respondents are alleged to have violated the Code.

16With respect to the request for an order requiring further particulars, the applicant submits that the respondents were able to provide a “full response”. He alleges that the respondents’ request for particulars is “broad, vague and lacking in particularity”. He submits that he has already provided enough specificity in providing dates, identities, and places. He submits that where he has not been specific, it is because he has provided “summaries of similar incidents that were repeated over time, with little actual variation”. He also submits that this was done to avoid repetition and to “save paper” but that many of the specifics would become apparent from the documentation he would provide. Finally, he submits that with regard to the last date cited in the Application, he is “preparing a proposal to amend his Application” by the end of May, 2013.

17The Application form instructs applicants to “describe each event” they believe was discriminatory, including “what happened, who was involved, when it happened (day, month, year) and where it happened”. The form instructs applicants to be as complete and accurate as possible and to be sure to “give details of every incident of discrimination you want to raise in the hearing”. It is not sufficient for the applicant to “summarize” allegations without providing the necessary particulars, nor is it sufficient for the applicant to assert that some further particulars will become apparent with documentation to be provided by way of disclosure prior to the hearing. Further, I note that the Tribunal is not as of this date in receipt of any RFOP from the applicant seeking to amend his Application.

18While the applicant has particularized certain allegations, there are a number of what appear to be allegations of discrimination for which he has not provided all of the particulars required. I also note that the respondent has not provided a response to each of these allegations.

19The applicant is directed to provide further particulars with respect to any allegation of discrimination he proposes to rely upon at the hearing of this matter, within 7 days of this Interim Decision. The respondent will provide any amended Response it wishes to provide with respect to these particularized allegations within 7 days of receipt of the applicant’s particularized allegations.

DECISION

20The Tribunal makes the following orders:

1. The individual respondents Donna Lajoie, Donna Pocock, Brandy Seiben, Sean Dolan, and Chris Platjouw are removed as parties to this Application and the style of cause is amended accordingly.

2. The applicant is directed to file with the Tribunal and deliver to the respondent further particulars with respect to any allegation of discrimination he proposes to rely upon at the hearing of this matter, within 7 days of this Interim Decision.

3. The respondent is directed to file with the Tribunal and deliver to the respondent any amended Response it wishes to provide with respect to the above-noted particularized allegations within 7 days of receipt of those particularized allegations.

21I am not seized.