Andre Vigneault v. Aramark Canada Ltd., 2014 HRTO 347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andre Vigneault

Applicant

-and-

Aramark Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: March 13, 2014
Citation: 2014 HRTO 347
Indexed as: Vigneault v. Aramark Canada Ltd.

WRITTEN SUBMISSIONS

Andre Vigneault, Applicant

Delphine St. Jacques, Representative

Aramark Canada Ltd., Respondent

H.P. Rolph, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses the Request for an Order During Proceedings brought by the applicant on January 24, 2014 for the following orders:

a. To add two personal respondents, namely Ian MacKay and Wilf Prescott, as parties to the Application, and to amend the Application to include claims of discrimination, harassment and reprisal as against them;

b. To amend the Application to include new allegations of discrimination and reprisal that allegedly occurred since the Application was commenced;

c. To amend the Application to increase the monetary remedy for injury to dignity, feelings and self-respect; and

d. To amend the Application to request that the two personal respondents, if added as parties, be held jointly and severally liable.

3The applicant and respondent have provided written submissions.

4The hearing in this matter is scheduled for June 23 to 25, 2014.

Request to Add Personal Respondents & Request for Joint and Several Liability

5Rule 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 paragraph 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 applicant alleges that the proposed personal respondents discriminated against him on the basis of disability by failing to consider his application for a position with the corporate respondent in December 2013 after the Application was commenced.

7The respondent alleges, among other things, that there is no doubt that the corporate respondent can satisfy any order made in the proceeding even if the Tribunal allows the applicant to amend his Application to include the new allegations, and that the applicant has made no allegations against the personal respondents other than that they hold senior management positions at the corporate respondent.

8Given the lack of allegations against the proposed personal respondents other than that they were involved in the decision not to offer the applicant a position with the corporate respondent; that the corporate respondent will accept liability for the acts of the proposed personal respondents; that the applicant raised no issue with respect to the corporate respondent’s ability to satisfy any order made and that the corporate respondent has assured the Tribunal that in fact the corporate respondent can satisfy any order made, I see no reason to add the personal respondents, and the applicant’s request is denied. As such, I need make no order with respect to the applicant’s request to hold the proposed personal respondents jointly and severally liable.

Request to Amend the Application to Add Events since the Application was Commenced

9The applicant requests an order to amend his Application to add allegations with respect to alleged discrimination and reprisal that occurred in December, 2013 when the respondents rejected his application for the position of Director, Support Services. The applicant characterizes this as an ongoing failure to accommodate him.

10The respondent objects to the amendment, alleging that:

a. what the applicant called an “employment application” was actually an offer to settle from the applicant; and

b. the applicant is relying on “without prejudice” correspondence exchanged between the parties.

11The respondent provided a copy of a “without prejudice” letter from the applicant to the respondent’s lawyers dated January 7, 2014 in which the applicant advised that he had applied for the position of Director of Support Services for Quinte Healthcare, and referred to this job being a “win-win” for both parties.

12The respondent submits that most of the applicant’s request to amend his Application consists of allegations pertaining either to his January 7, 2014 “without prejudice” letter or to the respondent’s January 17, 2014 “without prejudice” response to that letter.

13The Tribunal agrees that the applicant’s request to amend his Application relies largely on the exchange of “without prejudice” correspondence between the parties. Despite the applicant’s attempt to characterize his use of the term “without prejudice” differently, the correspondence shows that the job application was framed by the applicant to the respondent as a potential “win-win” situation for the parties and was sent to the respondent’s lawyers marked “without prejudice”. The letters in my view are part of settlement discussions and are confidential.

14Despite this, the parties do not disagree that the applicant applied for the Director of Support Services job and that the applicant did not get that job.

15Therefore, the Tribunal allows the Application to be amended to include the new allegation. To decide otherwise would require the applicant to commence a second Application that would contain many of the same facts at issue in this Application, and the question of settlement privilege would remain unresolved. The amendment will permit efficiency in hearing all of the applicant’s allegations at once.

16However the amendment is subject to the following conditions:

1. the applicant is permitted to amend the Application to include the fact that he applied to another position that he alleges would have been suitable accommodation for him and that he was not hired for that position.

2. the amendment shall not include or make reference to content and details contained in the “without prejudice” correspondence exchanges between the parties.

Request to Amend the Application to Increase the Requested Monetary Remedy

17The respondent did not provide submissions in opposition to this request.

18The amendment is allowed in accordance with the test in Wozenilek v. 7-Eleven, 2009 HRTO 926, by “taking into account the stage at which the request to amend is made, the nature of the amendment and the absence of any apparent prejudice.”

19The request does not raise new facts, the hearing in this matter is more than three months away and there is no prejudice to the respondent.

order

20The Tribunal orders that the applicant’s request to add additional respondents is denied.

21The Tribunal orders that the Application is amended:

a. to include a new allegation of discrimination and reprisal arising out of the applicant’s job application with the respondent in December, 2013 subject to the conditions identified in paragraph 16 above; and

b. to increase the amount of the monetary remedy.

22The Tribunal orders that the applicant shall by March 27, 2014 deliver and file his amended Application, subject to the condition in paragraph 16 above, setting out particulars of when and how he applied for the job and the respondent’s response to his application, as well as particulars with respect to his reprisal allegation.

23The Tribunal orders that the respondent shall by April 10, 2014 deliver and file an amended Response to the amended Application.

24The Tribunal orders that both parties shall, as soon as possible, and by no later than April 12, 2014, review and, if necessary, amend their lists of arguably relevant documents in response to the amendments, which shall not include any of the “without prejudice” documents exchanged between the parties with respect to the applicant’s December, 2013 job application.

25I am not seized.