HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Leslie Austin
Applicant
-and-
2318923 Ontario Inc. and Herman Grewal
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Austin v. 2318923 Ontario Inc.
WRITTEN SUBMISSIONS
Leslie Austin, Applicant
Self-represented
Herman Grewal, Respondent
Self-represented
2318923 Ontario Inc., Respondent
No one appearing
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 goods, services and facilities because of disability. This Interim Decision addresses two Requests for an Order During Proceedings, from the individual respondent and the applicant, respectively.
Background
2The applicant states that she uses a motorized wheelchair and states that the Subway restaurant operated by the organizational respondent does not have an automatic door opener, despite being a new store. As a result, the applicant cannot access the restaurant independently. The applicant states that she contacted the owner of the organizational respondent who informed her that he would investigate a solution, but none has been forthcoming to date. In its Response, the organizational respondent states that the Subway location in question is new, but the building specifications did not require an automatic door opener. The organizational respondent states that it is willing to provide a solution that will make the restaurant accessible. The organizational respondent also named Herman Grewal as an individual respondent. The relationship between the organizational respondent and individual respondent is not clear, but the individual respondent states in his Response that he is responsible for over 240 restaurants”, which may indicate a franchisor/franchisee relationship. The individual respondent’s position is that an automatic door opener is not required and that alternate accommodation measures will suffice.
The Individual Respondent’s Request
3On October 25, 2013, the individual respondent filed a Request for an Order During Proceedings seeking an order removing him as a respondent to the Application. The other parties did not respond to this Request and the time for doing so has passed. The individual respondent submits that the organizational respondent did not intend to name him as a respondent, but merely wished to advise him of the situation.
Analysis and Decision
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?
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.
6The individual respondent’s submissions did not address any of the criteria the Tribunal considers when dealing with a request to remove a respondent. The individual respondent submits that the organizational respondent added him by accident, but this has not been confirmed by the organizational respondent. As noted, the relationship between the respondents is not clear and it is not clear that the organizational respondent would be vicariously liable for any action of the individual respondent.
7Consequently, I am not prepared – at this time – to remove the individual respondent. The individual respondent may renew his Request by filing another Request for an Order During Proceedings that address the necessary criteria and clarifies the relationship between the respondents.
The Applicant’s Request
8On February 19, 2014, the applicant filed a Request for an Order During Proceedings seeking to add Orchal Foods Canada (“Orchal”) as an organizational respondent and to amend the Application to add a request for a public interest remedy, i.e., that the individual respondent take human rights training. The other parties did not respond to this Request and the time for doing so has passed. The applicant alleges that the individual respondent is the president of Orchal and is the Regional Development Advisor for over 200 Subway Stores. The applicant states that these stores report to the individual respondent. The applicant states that it is more accurate to describe the individual respondent as representing Orchal.
9The applicant submits that the individual respondent “does not recognize the existence of the Human Rights Code” and therefore it would appropriate to require him to take human rights training.
Analysis and Decision
Request to Add Orchal
10The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
11The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at paragraph 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
12As noted above, the individual respondent was named by the organizational respondent. The Application contains no allegations against Orchal. Consequently, I cannot find on the material currently before the Tribunal that there are any allegations that would support a finding that Orchal violated the Code. In these circumstances, there is also no basis for concluding that it would be fair to add Orchal to the Application.
13The applicant may renew her request to add Orchal, should she have further information that would connect Orchal to the allegations in the Application.
Request to Add Remedy
14In determining requests to amend pleadings under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066, Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
15Hearing dates have not been set for this matter; therefore, the amendment comes at a relatively early stage of the process. The respondents have not identified any prejudice and adding a remedy does change the case the respondents have to meet. Accordingly, I am satisfied the applicant should be permitted to amend the Application as requested.
Order
16The Tribunal orders as follows:
The request to remove the individual respondent is denied;
The request to add Orchal is denied; and,
The request to amend the Application is granted.
17I am not seized.
Dated at Toronto, this 21st day of March, 2014.
“Signed by”
Douglas Sanderson
Vice-chair