HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yongbin Liu

Applicant

-and-

Everlink Payment Services Inc.

Respondent

Interim Decision

Adjudicator: Ena Chadha

Date: April 18, 2013

Citation: 2013 HRTO 639

Indexed as: Liu v. Everlink Payment Services Inc.

WRITTEN SUBMISSIONS

Youngin Liu, Applicant

Self-represented

Everlink Payment Services Inc., Respondent

Tracey L. Epp, Counsel

INTRODUCTION

1This Application was filed on September 20, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“Code”) alleging discrimination with respect to employment on the basis of race, colour, ancestry, place of origin and ethnic origin. The applicant alleges that he was unfairly blamed for a computer problem and that he was required to take an English as a Second Language course. The applicant alleges that the respondent wrongly accused him of refusing to attend the course and eventually discriminatorily terminated his employment.

2The respondent filed a Response on November 1, 2012, denying the allegations. The respondent alleges that there were concerns with respect to the applicant’s job performance, as well as his verbal and written English skills for which the respondent provided coaching and educational classes. The respondent alleges that the applicant’s role was eliminated and merged with another position, requiring skills which the applicant did not possess.

3The applicant filed a Reply on November 15, 2012 and a Request for an Order During Proceedings (“RFOP”) seeking to amend his Application to increase his damages claim and add his former manager as a personal respondent.

4On December 13, 2012, the respondent filed a response opposing the applicant’s RFOP on the basis that the applicant did not raise any new facts to support the proposed amendments.

ANALYSIS & DECISION

Request to Amend and Add a Party

5Rule 1.7(c) of the Tribunal’s Rules of Procedure (“Rules”) states that in order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may “allow any filing to be amended.”

6In determining requests to amend applications filed under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

7I am satisfied that the applicant should be permitted to amend the Application to clarify the remedies claims. The remedial amendments proposed by the applicant simply specify additional financial compensation being claimed and explain the basis for the damages sought. In previous decisions, the Tribunal has allowed amendments to Applications, including remedial claims, prior to the commencement of a hearing. See for example, Guzman v. Senton Incorporated, 2011 HRTO 1480; Marino v. Compuware Corporation of Canada, 2011 HRTO 1390; and Loney v. Combusco Enterprises, 2011 HRTO 1050. The amendments are made without any determination by the Tribunal as to the merits of the allegations or the appropriateness of the remedies sought, and without prejudice to any position the respondent may wish to take regarding these issues.

8The applicant’s request to amend the Application to add his former manager fails to provide any submissions as to why it is now necessary to include his former manager as a respondent party to this proceeding. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

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.

9Based on a review of the applicant’s narrative in Form 1 of the Application, it appears that the applicant’s concerns with respect to the conduct of the former manager relate to actions and decisions taken by the former manager in his employment supervisory role. There does not appear to be any allegation impugning the former manager for behaviour outside of his employment capacity for which the corporate respondent may be deemed vicarious liabile. The applicant has not identified any prejudice or concerns with respect the corporate respondent’s responsibility and ability to satisfy any remedies. As such, there does not appear to be any compelling reason to add the proposed respondent. Therefore, the applicant’s request to add his former manager as a respondent is denied.

ORDERS

10The Tribunal orders as follows:

i. The Application is amended to include the new damages claim as itemized in the applicant’s RFOP;

ii. Should the respondent wish to file an amended Response to address the amended damages claim, the respondent is directed to file with the Tribunal, copied to the applicant, an amended Response within 35 days of date of this Interim Decision; and

iii. The applicant’s request to amend the Application to add the proposed personal respondent is denied.

11I am not seized of this matter.