MacFarlane v. Battlefield Equipment Rentals, 2015 HRTO 1643

Human Rights Tribunal of Ontario

B E T W E E N:

Jamie MacFarlane

Applicant

-and-

Battlefield Equipment Rentals and Kent Folkerson

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: December 3, 2015

Citation: 2015 HRTO 1643

Indexed as: MacFarlane v. Battlefield Equipment Rentals

WRITTEN SUBMISSIONS

Battlefield Equipment Rentals and Kent Folkerson, Respondents

Paula Rusak, Counsel

Introduction

1The applicant alleges that he was discriminated against and harassed because of his disability (PTSD) during his employment with the corporate respondent. The applicant makes specific allegations of harassment against the individual respondent. For example, the applicant alleges that the individual respondent told him that he might not be able to do his job because of his disability and that he would be held to a higher standard from the other employees. The applicant believes that the individual respondent used the applicant’s disability as a weapon against him in order to trigger a stress response hoping the applicant would resign. The respondents deny these allegations.

2The respondents filed a Request for Order During Proceedings (“RFOP”) seeking the removal of the individual respondent as a party on the following grounds:

a. The individual respondent was, at all material times, acting in his capacity as an employee of the corporate respondent;

b. The corporate respondent does not dispute the fact that it is vicariously liable in the Application, in the event the applicant’s allegations of discrimination and harassment are proven;

c. In the event the applicant’s allegations of discrimination and harassment are proven and damages awarded to the applicant, there is no reason to believe that the applicant will not be able to recover damages from the corporate respondent.

3The applicant did not respond to the RFOP.

DECISION AND ANALYSIS

4Rule 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.

5The 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.

6On the face of the Application, it is apparent that the conduct of the individual respondent is a central issue in this case. The applicant complains that the individual respondent treated him unfairly, harassed him and threatened him with dismissal on an ongoing and almost daily basis. In the event the applicant’s harassment allegations are substantiated, a remedy may be sought against the individual respondent regardless of the fact that the corporate respondent acknowledges vicarious liability for his conduct. As such, it would not be appropriate to remove the individual respondent at this stage in the proceeding.

7For these reasons, the request to remove the individual respondent is denied.