Octavius v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1518

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valentino Octavius Applicant

-and-

Her Majesty the Queen as represented by the Minister of Community Safety and Correctional Services Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 10, 2013 Citation: 2013 HRTO 1518 Indexed as: Octavius v. Ontario (Community Safety and Correctional Services)

WRITTEN SUBMISSIONS

Valentino Octavius, Applicant Self-represented

Her Majesty the Queen as represented by the Minister of Community Safety and Correctional Services, Respondent Lorenzo Policelli, Counsel

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 and reprisal or threat of reprisal. The applicant is an employee of the organizational respondent and he alleges that the respondent failed to accommodate him properly by assigning him duties outside of his disability related restrictions. The applicant identified three individual respondents who are managerial employees of the organizational respondent and were involved in the incidents of discrimination.

2This Interim Decision addresses a Request for an Order During Proceeding and a Request for Summary Hearing, both filed by the respondents on July 16, 2013.

3Having reviewed the Application, the Request for a Summary Hearing is denied. Pursuant to Rule 19A.5, the Tribunal need not give reasons for a decision not to hold a summary hearing following a party's request.

The Respondents' Request

4In the Request for an Order During Proceedings (the "Request"), the Respondents seek the removal of the individual respondents from the Application and the style of cause amended accordingly, and amendment of the style of cause to reflect the applicant's new legal name. The applicant did not file a Response to a Request for an Order regarding the Request and the time for doing so has passed.

Removal of Individual Respondents

5Rule 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 et al, 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.

6The 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.

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, the Ministry, that is also alleged to be liable for the alleged discrimination. The Ministry has accepted vicarious liability in this matter and submits that it is in the best position to affect remedies for any violations of the Code. The respondents submit that the allegations arise in the context of the individual respondents' employment; therefore, there is no compelling reason to continue the proceeding against the individual respondents. The applicant would suffer no prejudice because the individual respondents will be available as witnesses.

8Based on the respondents' submissions, it appears that the organizational respondent is prepared to accept any potential liability on behalf of the individual respondents; it can respond to the allegations; and, if required, remedy any violations. The facts alleged in the Application do not indicate that the individual respondents were acting within the scope of their employment duties and authority as managers. The applicant has not asserted any specific prejudice if the individual respondents are removed and I am unable to discern any compelling reason to continue this proceeding against the individual respondents.

Name Change

9The respondents submitted that the applicant advised the organizational respondent, his employer, that he changed his legal name to Valentino Octavius. Accordingly, the respondents submitted that the Tribunal should amend the style of cause to reflect the applicant's legal name.

10In the circumstances, I find that it is appropriate to amend the style of cause to reflect the applicant's legal name. He has apparently advised the organizational respondent of the change to his name and, indeed, he is now using that name in his correspondence with the Tribunal.

Order

11The Tribunal orders as follows:

1. The respondents' request for a Summary Hearing is denied;

2. The respondents' request to remove individual respondents is granted and the style of cause is amended accordingly; and

3. The style of cause is amended to reflect the applicant's legal name: Valentino Octavius.

12I am not seized.