Taiwo v. Algonquin College of Applied Arts and Technology, 2014 HRTO 351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adekoya Taiwo Applicant

-and-

Algonquin College of Applied Arts and Technology and Nigel Parker Respondents

INTERIM DECISION

Adjudicator: Brian Cook Date: March 13, 2014 Citation: 2014 HRTO 351 Indexed as: Taiwo v. Algonquin College of Applied Arts and Technology

APPEARANCES

Adekoya Taiwo, Applicant Self-represented

Algonquin College of Applied Arts and Technology and named personal respondents, Respondents Jock Climie, Counsel

INTRODUCTION

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 and harassment with respect to employment because of colour, ancestry, place of origin, sex, and gender identity.

2The Application named the organizational respondent and four personal respondents. The respondents filed a Request for Order During Proceedings asking that the personal respondents be removed as respondents. The applicant opposes that request.

3This Interim Decision considers the respondents' request to remove personal respondents. For the reasons that follow, I conclude that three of the named personal respondents should be removed as respondents.

BACKGROUND

4The applicant was employed by the organizational employment. His employment was terminated on March 1, 2013. The applicant alleges that he experienced discrimination and harassment during his employment and that the termination of his employment was unjust and discriminatory.

5The personal respondents named in the Application included one co-worker and three individuals who were in supervisory positions and involved in the decision to terminate the applicant's employment.

6The factors typically considered by the Tribunal when determining a request to remove a personal respondent are as follows:

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?

Persaud v. Toronto District School Board, 2008 HRTO 31

7In this case, the organizational respondent denies that the applicant was subject to any discrimination on any Code-protected ground. The organizational respondent states, however, that if discrimination were to be found, it accepts full liability.

8I note that while the organizational respondent accepts full liability for any discrimination that may be found, it has not confirmed that it would accept full liability for any harassment on Code-protected ground that may be found. Under section 46.3(1) of the Code, an employer is deemed to be liable for any discriminatory act or thing done or omitted to be done by a person in the course of that person's employment. However, an employer may not be liable for harassment on a Code-protected ground.

9With respect to three of the personal respondents, the allegations appear to be that they engaged in discriminatory conduct in the course of their respective employments. However, with respect to the co-worker, the applicant alleges that the co-worker engaged in racial harassment of the applicant.

10The applicant argues that the conduct of the personal respondents is central to the allegations in the Application and that on that basis, none of the personal respondents should be removed.

11At this stage in the processing of this Application, I conclude that it is appropriate to remove the personal respondents except for the co-worker who is alleged to have engaged in racial harassment. The allegations about the other personal respondents are that they discriminated against the applicant in the course of their respective employments and the organizational respondent accepts full liability in the event that there is a finding that the discriminatory conduct in fact occurred. While it is true that their alleged conduct is central to the allegations in the Application, this is not, in my view, a sufficient or compelling reason for them to remain as respondents.

12At this stage, the co-worker is not removed as a personal respondent because the allegations about him are different. The issue of whether the co-worker should be removed may be reviewed at a later date after hearing documents have been disclosed and the nature of the issues in the Application has become clearer.

DECISION

13At this stage in the processing of the Application, it is appropriate to remove the personal respondents except for the co-worker named in the Application.