HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frederik Daragjati
Applicant
-and-
Strabag Inc. - Tunneling & Services
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Daragjati v. Strabag Inc.
APPEARANCES
Frederik Daragjati, Applicant ) Bay Ryley, Counsel
Strabag Inc. - Tunneling & Services, Respondent ) Paula M. Rusak, Counsel
1The applicant filed an Application with the Tribunal under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on February 14, 2011. He alleges discrimination on the basis of disability in employment.
2Specifically the applicant alleges that the respondent failed to accommodate his disabilities and terminated his employment for discriminatory reasons. During the course of his employment with the respondent, the applicant had also filed a claim for benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) as a result of a workplace injury.
3The respondent has filed a Response dated December 7, 2009 denying the allegations. They assert that the applicant was properly accommodated and that he was laid off from work because the light duty position in which he was working was no longer needed on the job site.
4A Case Management teleconference was held on March 15, 2013, to address a number of outstanding preliminary matters and Requests for Order filed by the parties.
Respondent’s Request to Amend
5The respondent’s request to amend its Response, dated July 19, 2012, unopposed by the applicant, to correct the date the applicant was hired from May 31, 2011 to May 30, 2010, is granted.
Respondent’s Request for Removal of the Personal Respondent Ernst Gschnitzer
6A Request for Order During Proceedings (“RFOP”) dated March 30, 2012, was filed by the respondents seeking dismissal of the Application by way of summary hearing and removal of the personal respondent, Ernst Gschnitzer.
7The request that a summary hearing be held was denied and communicated to the parties by way of a Registrar’s letter, dated August 22, 2012.
8The request for the removal of Mr. Gschnitzer remains outstanding.
9Rule 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 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.
10The 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:
Is there is 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 is 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?
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.
11The respondent has confirmed that the personal respondent’s actions were undertaken in the course of his employment. As such, having reviewed the Application documents, I find that it is not necessary to involve Ernst Gschnitzer as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
12The respondents’ request to remove Ernst Gschnitzer as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
Request for Deferral
13On January 15, 2013, the respondent filed an RFOP requesting that the Application be deferred pending completion of proceedings under the WSIA. At the time, it noted that a Workplace Safety and Insurance Board (“WSIB”) hearing was held on November 16, 2012 before an Appeals Resolution Office (“ARO”).
14The respondents submitted that the Application should be deferred because the ARO decision was pending and the Tribunal hearing had not yet begun, an overlap of facts and issues in both proceedings; a central issue being the circumstances surrounding the applicant’s lay off in January 2011; proceeding with the Tribunal hearing potentially resulting in conflicting decisions and the unnecessary expenditure of resources; and an overlap of remedies in the event that the applicant was successful before both Tribunals.
15The applicant filed a Form 11 opposing the respondents’ request to defer and indicating that a decision of the ARO had just been issued on January 10, 2013. I note that neither party has yet provided the Tribunal with a copy of the decision of the ARO.
16Counsel for the respondent indicates that an appeal to the WSIAT has recently been filed by the respondent employer and seeks deferral to that proceeding instead.
17The applicant acknowledges that while there is overlap, there are issues for the Tribunal to determine beyond those which will be determined by WSIAT, including whether he was accommodated under the Code prior to his lay off. He also argues that the remedies are different before the two Tribunals. He argues that any hearing before the WSIAT would be some time away (his lawyer’s estimate being 1.5 years) and submits that it would not be appropriate for the Tribunal to defer in a situation where the hearing is two weeks away.
18Rule 14.1 of the Tribunal’s Rules states:
The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.
19The Tribunal will generally defer an application where there is an ongoing proceeding based on the same facts and issues. Deferral of an application ensures that proceedings dealing with similar or overlapping issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.
20The initial consideration for the Tribunal in deciding whether or not to defer to another proceeding is whether the same human rights issues are being raised before another decision-maker with the authority to deal with those issues. When human rights issues are not clearly engaged in the other proceeding, but the application raises facts or issues which overlap with those in another concurrent proceeding, the Tribunal may nonetheless defer determination of the application. In making this determination the Tribunal will consider factors such as the subject matter of the other proceeding, its nature, the type of remedies available, the status of the other proceeding and steps that have been taken to pursue it.
21I do find that a central issue to be determined by both the Tribunal and WSIAT concerns the applicant’s lay off in January 2012. In addition, there are a number of other facts and issues which overlap between the two proceedings. These are factors in favour of deferring the Application. The Tribunal has held that applications can be deferred where there is an overlap of facts and issues, and particularly central issues. (See Baghdasserians v. 674469, 2008 HRTO 404, Hamel v. Voith Industrial Services of Canada Inc., 2011 HRTO 1303; and Cui v. MSM, 2008 HRTO 449 at para. 9.)
22However, the Tribunal also has a mandate to ensure that matters before it are dealt with in a fair, just and expeditious manner and factors such as the status of each proceeding and the steps that have been taken to pursue them are also relevant considerations in deciding whether an Application will be deferred. I note that the Tribunal has held that an application can be deferred if WSIB proceedings are well underway. (See Cui, at para. 9.) However, while counsel for the respondent has confirmed that the respondent in the case before me has filed a notice of appeal to WSIAT, it appears that the appeal was filed within the last week or two. No other steps have yet been taken.
23In the Tribunal’s decisions in Walz v. DMI Canada Inc., 2011 HRTO 1124, and Nghiem v. Frendel Kitchens, 2011 HRTO 313, deferral was denied to avoid further extensive delay.
24Given that this matter is ready to proceed to a hearing and given the very recent filing of the appeal to the WSIAT, without a hearing date being set by WSIAT, I do not find it appropriate to defer this Application indefinitely to the WSIAT proceeding, particularly since this Application was filed in February, 2011. A deferral of the Application would further delay a final ruling on this Application and would run contrary to the Tribunal’s mandate to provide a fair, just and expeditious resolution of the merits of the Application.
25Accordingly, the request to defer is denied. The hearing will commence on April 5, 2013, as scheduled. The parties should be prepared to address the implications, if any, of the decision of the ARO on the proceeding before this Tribunal. As the parties have indicated an interest in engaging in mediation-adjudication, no witnesses need attend the proceedings on the morning of April 5, 2013.
Dated at Toronto, this 19th day of March, 2013.
“signed by”
Jay Sengupta
Vice-chair