HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steven Wallwork
Applicant
-and-
Toyota Motor Manufacturing Inc.
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Wallwork v. Toyota Motor Manufacturing Inc.
WRITTEN SUBMISSIONS
Steven Wallwork, Applicant
Self-represented
Toyota Motor Manufacturing Inc., Respondent
Ted Kovacs, Counsel
Joanne Euler, Respondent
Jessica DiFederico, 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.
2The corporate respondent has filed a Response denying all of the allegations in the Application against it and four personal respondents who are employees. Joanne Euler has filed her own Response.
3The corporate respondent filed a Request for an Order During Proceeding (the “Request”) seeking the removal of all of the named personal respondents, including Ms. Euler who supports the Request. The corporate respondent accepts that it is vicariously liable for the actions of all of the personal respondents.
4Though the applicant filed a Reply, he did not make any submissions opposing the removal of these personal respondents.
DECISION
5Rule 1.7(b) of the Tribunal’s Rules of Procedure 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.
6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) 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?
7In 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.
8Having reviewed the submissions of the parties, the Tribunal finds that all of the factors in Persaud have been met. The corporate respondent is a corporation that is vicariously liable for the actions of the named personal respondents, who are either employees or its agents, and their conduct relates to the corporate respondent’s efforts to accommodate the applicant. The corporate respondent is fully capable of satisfying any remedial order and no prejudice will result from their removal as respondents.
ORDER
9The Tribunal orders as follows:
a) The named personal respondents are removed as respondents and the style of cause shall immediately be amended.
Dated at Toronto, this 4th day of June, 2013.
“Signed by”
Geneviève Debané
Vice-chair