Trevors v. Homestead Land Holdings Limited, 2013 HRTO 1176

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Trevors

Applicant

-and-

Homestead Land Holdings Limited, Martin Woock, Jeff Rychel and John Papini

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: July 5, 2013 Citation: 2013 HRTO 1176 Indexed as: Trevors v. Homestead Land Holdings Limited

WRITTEN SUBMISSIONS

Gary Trevors, Applicant

Self-represented

Homestead Land Holdings Limited, Martin Woock, Jeff Rychel and John Papini, Respondents

Donald B. Bayne, Counsel

1These are two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 17, 2011 (2011-10287-I), and April 19, 2012 (2012-11366-I). By Interim Decision, 2012 HRTO 1447, the Tribunal consolidated the Applications.

2In Application 2011-10287-I, the applicant alleges that the respondents subjected him to discrimination and harassment because of disability, in violation of sections 5(1), 5(2) and 9 of the Code. In Application 2012-11366-I, the applicant alleges that the respondents subjected him to reprisals for filing an application to the Tribunal, in violation of sections 8 and 9 of the Code.

3In a Reconsideration Decision, 2013 HRTO 827, the Tribunal granted Reconsideration of its Decision, 2013 HRTO 268, in which it dismissed the Application as abandoned and indicated that the Tribunal would schedule a new hearing date. The Tribunal also directed the parties to file written submissions regarding the respondents’ concerns regarding the fact that the applicant named several individual respondents. The applicant filed his submissions on June 6, 2013, and the respondents filed their submissions on June 17, 2013.

4Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at paragraph 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.

5The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 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.

6The applicant agreed that Jim Minnes could be removed as an individual respondent because he played a small part in the incidents in question. The applicant submitted that the other individual respondents should not be removed because they were responsible for the discriminatory and harassing conduct perpetrated against him.

7The respondents submitted the criteria for removal of an individual respondent set out in Persaud, supra, are met in this case. They submit that there is an organizational respondent, Homestead Land Holdings Limited (“Homestead”), that is also alleged to be liable for the alleged discrimination. Homestead has accepted vicarious liability in this matter and submits that there is no issue regarding Homestead’s ability to respond to or remedy the allege violations of the Code. The respondents submit that there is no compelling reason to continue the proceeding against the individual respondent and the applicant would suffer no prejudice because the applicant may advance his claims against Homestead.

Analysis and Decision

8Section 46.3(1) states as follows:

For the purposes of this Act, except subsection 2(2), subsection 5(2), section 7 and subsection 46.2(1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

9Homestead’s assertion that it would be liable for the alleged violations of the Code is not correct. The applicant has alleged, amongst other things, that he has been subject to harassment in the workplace in violation of section 5(2). Pursuant to section 46.3(1), Homestead is not liable for such harassment and workplace harassment is a significant component of Application 2011-10287-I. The applicant would be left without a remedy for any violations of section 5(2) should the Tribunal remove the individual respondents, which in my view is a compelling juridical reason to decline to remove the individual respondents.

10The applicant agreed to remove Mr. Minnes from the Application; therefore, the Application is dismissed against Mr. Minnes and the style of cause amended accordingly.