Codrin v. Commissionaires Great Lakes, 2014 HRTO 483

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mihai Codrin

Applicant

-and-

Commissionaires Great Lakes

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: April 7, 2014

Citation: 2014 HRTO 483

Indexed as: Codrin v. Commissionaires Great Lakes

WRITTEN SUBMISSIONS

Mihai Codrin, Applicant

Self-represented

Commissionaires Great Lakes, Respondent

Philip Fearon, Representative

Introduction

1This Application, filed on November 18, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability and reprisal.

2On December 13, 2013, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking leave to add four individual respondents to the Application and to amend the remedial claim in the Application. The applicant also sought production of all recorded communications between respondent employees which mention the applicant. The respondent objects to the applicant’s requests.

Adding the Individual Respondents

3Rule 1.7(b) of the Tribunal’s Rules of Procedure 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 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 applicant has requested leave to amend the Application to add two directors, a supervisor and the Chief Executive Officer of the respondent. He asserts that they either failed to investigate his human rights complaint and/or were involved in the decision to terminate his employment, a form of reprisal under the Code.

6In my view, there is no basis upon which to add the individual respondents because they are not personally responsible for their actions. Although they are alleged to have failed to investigate an alleged human rights complaint and/or were involved in the decision to terminate the applicant’s employment, they were acting in the course of their employment and as such, their actions were the actions of the corporate respondent. There are no allegations in the Application that these individuals acted in such a way as to attract personal liability and as such, there is no basis to add them as individual respondents.

7For these reasons, the applicant’s request to add the individual respondents is denied.

Amending the Application

8In Aubin v. Sudbury Sexual Assault Crisis Centre, 2011 HRTO 1281, the Tribunal held it will consider the following factors when determining whether to grant an amendment:

a. The nature of the proposed amendment;

b. The reason for the amendment;

c. The timing of the amendment request;

d. The prejudice to the respondents.

9The applicant also seeks leave to amend the Application to add specific claims for monetary compensation including special damages for the cost of his security guard fees and general damages in the amount of $100,000.00.

10The respondent was put on notice that the applicant was seeking compensation in the Application. The amendment provides the respondent with greater particulars regarding the amount of general damages and the special damages claimed. There is no prejudice to the respondent arising from this amendment as hearing dates have not yet been set. The applicant’s entitlement to these remedies will be determined at the hearing in this matter.

Production of Documents

11Under Rule 16, the Tribunal sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

12The Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances. I find that the applicant has failed to establish the exceptional circumstances necessary for the Tribunal to grant the applicant’s request for production prior to the deadlines that will be set in the Notice of Hearing. As such, the applicant’s request for production is denied as premature.

ORDERS

13The Tribunal makes the following orders:

a. The applicant’s request to amend the remedial claim in the Application is allowed;

b. The applicant’s request to add individual respondents is denied;

c. The applicant’s request for production is denied.

14I am not seized.