HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edward Piatowski
Applicant
-and-
General Motors of Canada Ltd.
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Piatowski v. General Motors of Canada Ltd.
WRITTEN SUBMISSIONS
Edward Piatowski, Applicant
Self-represented
General Motors of Canada Ltd., Respondent
David Bannon, 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 employment because of disability, reprisal and association. The respondent filed a Response denying that discrimination had occurred.
2The Interim Decision deals with the respondent’s Request for an Order (the “Request”) during Proceeding, seeking the removal of two named individual respondents and the production of the applicant’s health file.
3The applicant has filed a Response to the Request. In this Response the applicant makes his own requests for production and refers to a third individual, Scott Curry, who the applicant alleges has failed to file a Response and should therefore be deemed to have accepted the allegations in the Application. I have reviewed the Application and Mr. Curry is not a respondent but has been identified by the applicant as the contact person for the corporate respondent in the Application.
Removal of the Individual Respondents
4Rule 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.
5The 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?
6In 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.
7Having 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 two named personal respondents, who are both employees, 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.
Request for Production
8I have considered the respondent’s Request for production of the medical file and I find that this Request is premature. The Tribunal’s Rules provide that the parties must exchange arguably relevant documents 21 days after the receipt of the Notice of Hearing. In this case the parties have not yet attended Mediation. The respondent has not explained to the Tribunal why it is necessary for it to receive this production prior to Mediation. I note that the respondent has filed a very detailed and comprehensive Response to the Application without this medical file. The Request for production is denied at this time, but the respondent can renew this Request at a later time, if necessary.
9The applicant’s Request for production as identified in his Response is also premature.
Order
10The Tribunal orders as follows:
a. The two named personal respondents are removed as respondents and the style of cause shall immediately be amended; and
b. The Requests for production are denied as premature.
11Since both parties have consented, this Application will be scheduled for Mediation.
Dated at Toronto, this 3rd day of June, 2013.
“Signed by”
Geneviève Debané
Vice-chair