HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Powell
Applicant
-and-
Toronto Transit Commission
Respondent
-and-
Amalgamated Transit Union, Local 113
Intervenor
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Powell v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Michael Powell, Applicant Self-represented
Toronto Transit Commission, Respondent Michelle Dobranowski, Counsel
Amalgamated Transit Union, Local 113, Intervenor Ian J. Fellows, Counsel
1This Application alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondent has filed a Response.
2This Interim Decision addresses a number of procedural issues.
Request to intervene
3On April 16, 2014, the Amalgamated Transit Union, Local 113 (the "Union") filed a Request to intervene.
4Neither party filed submissions in response to the Union's request to intervene.
5Having considered the matter, I find that the Union has an interest in this proceeding. The Union's Request to intervene is allowed and the style of cause shall be amended to reflect this change.
Request for Summary Hearing
6On April 15, 2014 the respondents filed a Form 26, Requesting that the Tribunal direct a Summary Hearing be held in this proceeding.
7Having considered the respondents' Request I find that it is not appropriate to direct that a Summary Hearing be held. Pursuant to Rule 19.A.5 I am not required to provide any reasons for this determination.
Request to remove personal respondents
8On April 15, 2014, the respondents filed a Request for an Order during Proceedings seeking the removal of two named personal respondents.
9Rule 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.
10The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 ("Persaud") 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.
11Having reviewed the submissions of the parties, the Tribunal finds that all of the factors in Persaud have been met. The corporate respondent is a corporation that is vicariously liable for the actions of the named personal respondents, who are either employees or its agents, and their conduct relates to the corporate respondent's efforts to accommodate the applicant. The corporate respondent is fully capable of satisfying any remedial order and no prejudice will result from their removal as respondents.
12Therefore, the respondents' Request to remove the personal respondents is granted and the style of cause shall be immediately amended to reflect this change.
Order
13The Tribunal orders as follows:
a. The Amalgamated Transit Union, Local 113's Request to intervene is granted and the style of cause shall be amended to reflect this change;
b. The respondent's Requests for Summary Hearing is denied; and
c. The respondent's Request to remove the personal respondents is allowed and the style of cause shall be immediately amended to reflect this change.
Next Steps
14Unless the respondent advises within seven days of the date of this Interim Decision that it is willing to attend Mediation, this matter shall be scheduled for a one day hearing in Toronto.
15I am not seized.
Dated at Toronto, this 22nd day of May, 2014.
"signed by"
Geneviève Debané
Vice-chair