Kanapathipillai v. Peel (Municipality), 2013 HRTO 657

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yohanathan Kanapathipillai

Applicant

-and-

Regional Municipality of Peel and Joy Thomson

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 19, 2013

Citation: 2013 HRTO 657

Indexed as: Kanapathipillai v. Peel (Municipality)

Introduction

1By Application filed May 28, 2012, the applicant alleged discrimination in employment because of race, colour, place of origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application named both an organizational respondent and five personal respondents.

2On March 7, 2013, the Tribunal sent the applicant a Notice of Intent to Dismiss (“NOID”) against certain respondents. In the NOID, the Tribunal indicated that the applicant failed to identify any specific acts of discrimination in his Application against the following four personal respondents: Jim Egan, Joan Jemmott, Steve Hill and Andy Graham.

3The applicant has made written submissions in response to the NOID.

4This Interim Decision addresses whether the Application is within the Tribunal’s jurisdiction with respect to these four personal respondents.

application against Individual Respondents

5An Application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the Application that it does not fall within the Tribunal’s jurisdiction. See for example, Masood v. Bruce Power, 2008 HRTO 381 and Morin c. Alliance de la function publique du Canada, 2008 HRTO 58.

6In Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 4, the Tribunal reiterated its concern about the “unnecessary naming of personal respondents” and offered a framework for considering whether to remove personal respondents:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

7In his submissions, the applicant indicated that Jim Egan was the administrator of the long term care home where he was employed. According to the applicant, Mr. Egan was present for a meeting in which the applicant’s workload was discussed. The applicant also alleged that Mr. Egan warned him about filing grievances.

8The applicant indicated that Steven Hill is a human resources representative for the organization respondent. The applicant claims that Mr. Hill unfairly represented him because he did not resolve his grievance relating to workload issues.

9In my view, this is an insufficient basis for naming these two individuals as personal respondents. Not only would the organization respondent be accountable for actions taken in the course of their employment, but the applicant has failed to identify any specific acts of discrimination by these individuals.

10The applicant stated that Joan Jemmott was his supervisor. He indicated that Ms. Jemmott requested that he work extended shifts and allegedly forced him to work when he informed her that he was sick. According to the applicant, Ms. Jemmott also gave him a letter placing him on an unpaid leave of absence. This is an insufficient basis for naming Ms. Jemmott as a personal respondent. The applicant does not allege that Ms. Jemmott was responsible for any alleged acts of discrimination other than acts she took in the course of her employment as a representative of the organizational respondent.

11In his submissions in response to the NOID, the applicant did not address any specific acts of discrimination by Andy Graham.

12For the reasons set out above, it is plain and obvious that the allegations as against the four personal respondents identified above do not fall within the Tribunal’s jurisdiction. The Tribunal therefore orders that they be removed as respondents to the Application. The style of cause shall be amended accordingly.

13A copy of the Application, this Interim Decision and the submissions filed by the applicant in response to the NOID will be sent to the remaining respondents. The respondents are directed to file a full Response to the Application.

Deferral or Section 45.1

14In his Application, the applicant states that the subject matter of the Application is being dealt with in a grievance filed by his union. It is not clear whether the grievance proceeding is ongoing or whether it has concluded.

15Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.

16It should also be noted that the Tribunal may dismiss an application if another proceeding has appropriately dealt with the substance of a human rights claim. Section 45.1 states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

17The respondents may wish to address the issue of deferral or dismissal under s. 45.1 in their Response(s) to the Application. Regardless of whether the respondents chose to do so, the applicant is directed to make submissions on these issues within 14 days of receipt of the Response(s).

18I am not seized.