Bourguignon v. The Corporation of the Town of Carleton Place, 2015 HRTO 168

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Marc (Andre) Bourguignon

Applicant

-and-

The Corporation of the Town of Carleton Place

Respondent

INTERIM DECISION

Adjudicator: Geneviève Debané

Date: February 5, 2015

Citation: 2015 HRTO 168

Indexed as: Bourguignon v. The Corporation of the Town of Carleton Place

WRITTEN SUBMISSIONS

Marc Bourguignon, Applicant

Self-represented

The Corporation of the Town of Carleton place, Respondent

Danny Bernstein, Counsel

1This Application alleges discrimination with respect to employment because of sex and age, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses a number of Requests for Orders During Proceedings (“RFOPS”) filed by the parties.

3On December 1, 2014, the applicant sought to add three employees of the respondent as personal respondents.

4On December 23, 2014 the respondent filed an RFOP seeking the removal of a named personal respondent. The applicant opposes the removal of the named personal respondent.

Request to add the personal respondents

5Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. The Tribunal held in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 (“Smyth”), that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

6The only explanation provided by the applicant in his RFOP to add these three personal respondents is that they did not assist him in finding a resolution and participated in aggressive disciplinary measures.

7Having reviewed the Application and the RFOP there is simply no basis to add any of these three individuals as personal respondents to the Application. All allegations made against them occurred during the course of their employment. I am satisfied that there is no compelling reason to add these three individuals as parties in light of the fact that there is an organizational respondent which has already been named which is vicariously liable for their conduct.

Request to remove a personal respondent

8The respondent seeks the removal of a named personal respondent as a personal respondent to the Application. The respondent takes the position that all of the factors in the seminal case of Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), have been met in this case. The Tribunal states at paragraph 5, of Persaud:

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 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?

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.

9Having reviewed the allegations made by the applicant in the Application I find that it is appropriate to remove the named personal respondent as a party to the Application. All of the allegations in the Application relate to allegations that occurred during the course of the named personal respondent’s employment for which the organizational respondent has accepted liability. I find that there are no compelling reasons to maintain the named personal respondent as a respondent to the Application. In fact, this is exactly the circumstances in which personal respondents should be removed as respondents to an Application.

Order

10The Tribunal orders:

a. The applicant’s Request to add three personal respondents is denied; and

b. The respondent’s Request to remove the named personal respondent is granted and the style of cause shall immediately be amended to reflect this change.

11The Tribunal shall continue to process the Application and a mediation shall be scheduled.

12I am not seized.

Dated at Toronto, this 5^th day of February, 2015.

“signed by”

Geneviève Debané

Vice-chair