Mykyta Tolstoluzhskyi v. Brock University and Georgii Nikonov, 2015 HRTO 1539

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mykyta Tolstoluzhskyi

Applicant

-and-

Brock University and Georgii Nikonov

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: November 16, 2015

Citation: 2015 HRTO 1539

Indexed as: Tolstoluzhskyi v. Brock University

WRITTEN SUBMISSIONS

Mykyta Tolstoluzhskyi, Applicant

Ron Chyczij, Representative

Brock University and Georgii Nikonov, Respondent

Kathryn Bird, Counsel

1This Interim Decision explains why the Tribunal is denying the respondents’ request to remove Georgii Nikonov as a personal respondent.

2This Application alleges discrimination with respect to employment because of place of origin and citizenship contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The respondents’ request that the personal respondent be removed from this Application on the grounds that the personal respondent was at all times acting in the course of his employment with the respondent Brock University and not in his personal capacity.

4The applicant opposes this request on the grounds that the Application sets out a number of incidents where the personal respondent allegedly acted in a manner that places his individual conduct at the centre of this Application.

5Rule 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.

6The 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 factor may be helpful in assessing whether a personal respondent should be removed:

1. Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issued 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 nay 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.

7Here, the allegations, if proved, could support findings of Code violations against the personal respondent, as it is the alleged conduct of the personal respondent that is at the core of this Application. This could result in a determination that it is appropriate to order remedies against him personally.

8Having regard to these circumstances, I am of the view that removing the personal respondent from the Application at this stage would be unfair. The respondents’ request is therefore denied.

order

9The respondents’ request to remove Georgii Nikonov as a personal respondent is denied.