Mahmoud Galal v. Ontario Disability Support Program, 2015 HRTO 1088

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mahmoud Galal

Applicant

-and-

Ontario Disability Support Program

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 14, 2015

Citation: 2015 HRTO 1088

Indexed as: Galal v. Ontario Disability Support Program

WRITTEN SUBMISSIONS

Mahmoud Galal, Applicant

Self-represented

Ontario Disability Support Program, Romanella Rissato, Susanna Ardito and Nadia Mustillo, Respondents

Michelle Schrieder, Counsel

1This Interim Decision addresses the applicant’s request to re-activate his deferred Application as well as the respondents’ Request for Summary Hearing and their request to remove the personal respondents as parties to this Application.

2The applicant filed an Application alleging that the respondents discriminated against him because of disability and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The allegations contained in the Application relate to decisions taken by the respondents in regards to the applicant’s eligibility for Ontario Disability Support Program (“ODSP”) benefits, to the manner in which they treated the applicant in the processing of his claim and also to their alleged failure to accommodate the applicant’s disabilities.

3The applicant filed four appeals to the Social Benefit Tribunal (“SBT”) regarding issues that overlapped with the Application. On September 15, 2014, the Tribunal informed the parties that the Application would be deferred until the SBT decided the outstanding appeals.

Applicant’s Request to Re-activate Application

4By Request for Order During Proceedings (“Request”), the applicant requested that the Tribunal re-activate his Application as the SBT has now issued a decision in his appeals.

5The respondents did not file a response to the applicant’s Request. Instead, the respondents relied upon their Response (Form 2) and their Request for Summary Hearing (Form 26).

6Since the SBT has now issued its decision in this case, I grant the applicant’s request to re-activate his Application.

Respondents’ Request for Summary Hearing

7In their Response (Form 2) and in a Request for Summary Hearing (Form 26), the respondents sought the dismissal of this Application without a full hearing of the merits on the basis that the Application has no reasonable prospect of success.

8The Request for a Summary Hearing is granted. The Tribunal has set out directions for the summary hearing in a Case Assessment Direction sent to the parties with this Interim Decision.

respondents’ request to remove personal respondents

9In their Response, the respondents requested that the Tribunal remove the personal respondents, Romanella Rissato, Susanna Ardito and Nadia Mustillo, as parties to this Application on the basis that they were at all times acting within their roles as employees of the organizational respondent.

10The applicant did not respond to the respondents’ request.

11The 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?

12With regard to the first three factors: there is an organizational respondent 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.

13The issue is whether there is any compelling reason to continue the proceeding as against the personal respondents. The applicant makes a variety of allegations against the personal respondents who are his case manager and/or ODSP managers. The main thrust of his allegations relate to their handling of his ODSP claim. There is no information in the Application that would support any claim that the personal respondents were acting beyond the scope of their employment duties in this case. The applicant clearly takes the position that the personal respondents dealt with his claim in a discriminatory manner. However, this alone is not sufficient for them to be named as personal respondents. I do not see anything in his Application to support any inference that the personal respondents were acting beyond the scope of their duties in their administration of the ODSP program. As a result, I see no compelling reason to continue the proceeding against them personally, as their actions were taken as employees administering the organizational respondent’s benefit program. I also find that no prejudice would be caused to the applicant by removing these personal respondents since the organizational respondent would be deemed liable for any breaches of the Code arising from their alleged actions in this case.

order

14For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s Request to reactivate the Application is granted.

b. The respondents’ Request for a Summary Hearing is granted. Directions for the summary hearing are set out in the Case Assessment Direction sent to the parties with this Interim Decision.

c. The respondents’ request to remove Romanella Rissato, Susanna Ardito and Nadia Mustillo as personal respondents is granted and the style of cause is amended accordingly.