Salisbury v. Independent Electrical System Operator, 2015 HRTO 1685

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gavin Salisbury

Applicant

-and-

Independent Electrical System Operator and Allan Rosenfeld

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: December 15, 2015

Citation: 2015 HRTO 1685

Indexed as: Salisbury v. Independent Electrical System Operator

1The purpose of this Interim Decision is to address the respondents’ Request for Order During Proceeding (“Request”) seeking an Order removing seven individual respondents as parties to this Application made under the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2The parties have made various other requests which, in accordance with the Tribunal’s usual approach to preliminary and interlocutory matters, will be addressed if necessary after mediation.

3The applicant alleges discrimination in employment because of disability. Essentially the applicant alleges that the respondents have failed to accommodate his disability related needs to the point of undue hardship. He also alleges that he experienced reprisal by amongst other things being required to submit medical notes for alleged medical absences.

4The respondent Independent Electricity Operator (IESO) is the applicant’s employer. The respondent Dr. Allan Rosenfeld is a medical consultant who is separately represented. Dr. Rosenfeld has not filed a Request to be removed from the Application.

5The Request is granted and the style of cause amended accordingly.

6Rule 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.

The 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 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.

6The applicant opposed the Request. I am satisfied that the factors outlined in the cases above compel the conclusion that it is appropriate to remove the individual respondents identified in the Request.

7The applicant makes lengthy submissions seeking to distinguish this case from the principles outlined above. I am satisfied that the answer to the ultimate question – whether it is necessary that the seven individual respondents remain as parties in order to ensure a fair, just and expeditious adjudication of this Application – is no.

8The applicant argues that it is premature to remove the respondents. I do not agree. Although this case, being deferred for some time, remains at an early stage of the Tribunal process, the pleadings in the case are fulsome and detailed. The applicant’s materials in particular are voluminous and describe in great detail the alleged actions and inactions of the respondents he has identified. I have carefully reviewed the pleadings and am satisfied that the individuals identified appear to have been acting in the course of their employment and for the most part were implementing corporate policy in managing the applicant. Whether or not those actions and inactions were discriminatory remains to be determined, but it is also clear that the behaviour complained of is clearly not individuals acting on their own in such a way as would attract personal remedial orders against any of these individuals.

9I also note that in respect of another issue to be considered at another time, the applicant argues that the discrimination he experienced was systemic – suggesting that the actions and inactions of the individuals he complains about were in accordance with the policies and systems of the organizational respondent.

10The applicant argues that the organizational respondent has not explicitly accepted liability for the conduct of the identified individuals. However it follows from IESO’s position that they were each acting in the course of their employment that it is responsible for their actions.

11In my view it is clear, given the nature of the allegations, that in the event that a violation of the Code is found to have occurred, the IESO will be able to provide a remedy, including if appropriate revising its policies and procedures with respect to accommodating disability in the workplace and providing training to the individuals whose actions the applicant complains about if ordered to do so by the Tribunal.

12For all of these reasons I find that it would be most fair, just and expeditious to remove the individual respondents identified in the Request from the Application.

Next Steps

13As the parties have agreed to mediation the Tribunal will schedule mediation in due course. The remaining issues will be addressed if necessary following mediation.

14I am not seized of this case.