HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Krampp

Applicant

-and-

Bombardier Inc., Craig Haswell and Debra Lees

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: October 31, 2014

Citation: 2014 HRTO 1606

Indexed as: Krampp v. Bombardier Inc.

WRITTEN SUBMISSIONS

Bombardier Inc., Craig Haswell and Debra Lees, Respondents

Sarah Crossley, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to remove the named personal respondents as parties to this Application.

BACKGROUND

2The applicant filed an application alleging that the respondents discriminated against him because of citizenship, family status, age and gender identity contrary to the Human Rights Code, R.S.O. 1990, H. 19, as amended (the “Code”). Specifically, the applicant claimed that the respondents discriminated against him when they did not hire him for two positions for which he had applied.

Request to Remove the Personal Respondents

3Rule 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.

4The 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:

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

2. 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?

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

4. 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?

5. 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.

5The respondents submit that the personal respondents should be removed for a number of reasons including the following: there are no allegations made against some of the personal respondents in the Application; some of the personal respondents had no dealings with the applicant in relation to the events described in the Application; the conduct alleged by some of the personal respondents was carried out in the course of their duties as employees of the corporate respondent; and the corporate respondent concedes that it is liable for the conduct of its employees or former employees, including those employed by subsidiaries, that may be found to violate the Code.

6The applicant did not respond to the respondents’ request to remove the personal respondents.

7Applying the Persaud factors set out above, I find that the following individuals should be removed as personal respondents: Pierre Beaudoin, Guy Hachey, Mike Arcamone, Tommy Lavigne and Kimberley Elliott. The applicant does not make any allegations against these individuals in his Application. Therefore, there is no compelling reason to continue the proceeding against them.

8I find that it would not be appropriate to remove Craig Haswell and Debra Lees as personal respondents at this stage of the proceeding. In his Application, the applicant alleges that Mr. Haswell and Ms. Lees were responsible for the termination of his son’s employment and also had the authority to dismiss his application for employment. This alleged conduct on the part of these personal respondents is a central issue in this case. I appreciate that the parties have different versions of the facts of this dispute. At this stage, my assessment as to whether these two personal respondents should be removed as a parties is based on whether the allegations raised by the applicant, assuming them to be true, provide a compelling reason for them to continue as parties to the Application. In my view, the applicant’s allegations in support of his claim of family status discrimination provide a compelling reason to keep Mr. Haswell and Ms. Lees as personal respondents at this stage of proceeding. The nature of the alleged conduct of these personal respondents in relation to the applicant’s claim of family status discrimination, if proven, could make it appropriate to award a remedy specifically against them if an infringement of the Code were found in this case.

ORDER

9The respondents’ request to remove the personal respondents to this Application is granted in part. Pierre Beaudoin, Guy Hachey, Mike Arcamone, Tommy Lavigne and Kimberley Elliott shall be removed as personal respondents and the style of cause amended accordingly.

10As the parties have agreed to attempt mediation in this matter, the next step will be for the Tribunal to schedule a mediation.

11I am not seized of this matter.