HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Maurice Brenner

Applicant

-and-

Toronto Community Housing Corporation

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 13, 2015

Citation: 2015 HRTO 1079

Indexed as: Brenner v. Toronto Community Housing Corporation

WRITTEN SUBMISSIONS

Maurine Brenner, Applicant

Iain Donnell, Counsel

Toronto Community Housing Corporation, Pamela Spencer, Greg Spearn, Jennifer Bond and Norman Purves, Respondents

Kathryn Bird, Counsel

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to remove the named personal respondents as parties to this Application.

BACKGROUND

2The applicant filed an Application against the organizational respondent and the following personal respondents: Pamela Spencer, Greg Spearn, Jennifer Bond and Norman Purves. He alleged that the respondents discriminated against him because of age and association with a person identified by a protected ground contrary to the Human Rights Code, R.S.O. 1990, H. 19, as amended (the “Code”). He also alleged that the respondents reprised against him.

Request to Remove the Personal Respondents

1By Request for Order During Proceedings (“RFOP”), the respondents requested that the Tribunal remove the named personal respondents as parties to this proceeding. The applicant consented to the removal of all of the personal respondents except for Ms. Spencer. In light of the applicant’s consent, Mr. Spearn, Ms. Bond and Mr. Purves are removed as personal respondents.

2In their RFOP, the respondents rely upon the well-established criteria for removal of a personal respondent as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, whereby this Tribunal applies the following factors when considering such requests:

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?

3With regard to the first three factors: there is a corporate respondent, Toronto Community Housing Corporation, alleged to be liable based upon the alleged conduct of the personal respondents; no issue has been raised concerning the organizational respondent’s alleged deemed or vicarious liability for the conduct of the personal respondents; and there is no issue as to the ability of the organizational respondent to respond to or remedy the alleged infringements.

4The issue is whether there is any compelling reason to continue the proceeding as against either Ms. Spencer. In considering whether any compelling reason exists to continue a proceeding against a personal respondent, the Tribunal has found that one way of approaching the 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. See, for example, Wolde-Yohannes v. Marconi Club of London, 2015 HRTO 90.

5The applicant makes many allegations against Ms. Spencer. The main thrust of his allegations is that she undermined him in his work as Managing Director of the Office of Diversity Fairness and Human Rights within the organization. Among other things, the applicant alleges that Ms. Spencer discriminated against him by stripping him of some of his duties. He alleges that she made unfounded allegations that he was failing to follow applicable policies and procedures and made personal attacks against him. He also alleges that Ms. Spencer conducted an investigation of an internal complaint filed by the applicant in which she had an alleged conflict of interest. He also alleges that she was responsible for escalating a toxic environment in the workplace.

6With regard to all of these allegations, Ms. Spencer was acting in her capacity as General Counsel, Corporate Secretary and/or Interim Vice President of Human Resources. As part of that role, Ms. Spencer was responsible for overseeing the applicant’s work. I appreciate that the applicant’s position is that Ms. Spencer discriminated against him in the way she oversaw his work, investigated his complaint and interacted with him generally. However, in my view, the applicant’s claims primarily relate to how Ms. Spencer carried out her employment duties not that she acted beyond the scope of those duties.

7Although the applicant claims that one reason not to remove Ms. Spencer as a personal respondent is that he has sought as a remedy that all named personal respondents receive human rights training. Ms. Spencer is no longer employed by the organizational respondent and therefore the Tribunal cannot order her to undergo training unless she is named as a personal respondent. In my view, a request for a training remedy against a personal respondent cannot be used to justify retaining a personal respondent when the remaining Persaud factors weigh in favour of removal.

8The applicant also claims that Ms. Spencer should not be removed as a personal respondent since she was one of the people responsible for escalating a toxic environment in the organizational respondent’s workplace. I do not find that the claim of a toxic work environment is a reason to retain Ms. Spencer as a personal respondent as the actions complained of in the Application were actions that she took within the scope of her employment duties with the organizational respondent.

9On balance, I am not persuaded that it is necessary to involve Ms. Spencer as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

ORDER

10The respondents’ request to remove the personal respondents to this Application is granted. Pamela Spencer, Greg Spearn, Jennifer Bond and Norman Purves are removed as personal respondents and the style of cause is amended accordingly.

11As the parties have not both agreed to mediation, the Tribunal will schedule a two day hearing of this matter. The Registrar will advise the parties of the hearing dates by Notice of Hearing.

12I am not seized of this matter.