HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Frederick Garner
Applicant
-and-
Musashi Auto Parts Canada Inc.
Respondents
INTERIM DECISION
Adjudicator: Keith Brennenstuhl Date: December 15, 2015 Citation: 2015 HRTO 1686 Indexed as: Garner v. Musashi Auto Parts Canada Inc.
WRITTEN SUBMISSIONS
Frederick Garner, Applicant
Self-represented
Musashi Auto Parts Canada Inc., Respondent
Devon Sivill, Counsel
1This Interim Decision addresses the respondent’s request to remove the personal respondent as a party to this Application and the respondent’s request for a summary hearing.
2This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
Removing the personal respondent
3The respondent’s 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 and not in her personal capacity.
4The applicant opposes this request but provides no reason for doing so other than to state that the personal respondent was his “human resources contact at Musashi”.
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:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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.
7The respondent submits that all of the allegations concerning the personal respondent arise from the applicant’s employment and also arise out of the performance of the personal respondent’s duties as an employee of the corporate respondent. The respondent also argues that there is no issue that the corporate respondent is vicariously liable for any alleged discrimination or that it is unable to comply with any remedial order made by the Tribunal in the event liability is found. The respondent submits that there is no compelling reason to require that the personal respondent be required to participate in the proceeding as a party.
8As indicated the applicant objects to the removal of the personal respondent on the ground that the personal respondent was his human resource contact.
9I agree with the respondent’s submissions. In his Application the applicant alleges that the respondent failed to appropriately accommodate his disability related needs. The personal respondent is rarely mentioned in the narrative of the Application. It appears that her actions or inactions were taken in the course of her employment. In my view considering all of the circumstances, it is not necessary to the fair, just and expeditious adjudication of this Application to involve the personal respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
10The respondent’s request to remove the personal respondent is granted and the style of cause is amended accordingly.
Request for summary hearing
11By Request for Summary Hearing filed October 8, 2015, the respondent requested that the Application be summarily dismissed. The respondent submitted that the Application should be dismissed on the basis that the applicant has not provided a factual or evidentiary basis to validate his claim of discrimination.
12In its Response the respondent disputes facts alleged by the applicant. The respondent also provides its own version of the facts relevant to the Application.
13The respondent’s request to dismiss and/or request for a summary hearing is denied.
14Rule 19(a) of the Tribunal’s Rules of Procedure provides that where a Request for Summary Hearing is denied the Tribunal need not give reasons. In the circumstances of this case, I will simply note that the issues raised by the applicant and respondent may only be resolved after hearing evidence in a hearing on the merits. Summary hearings do not involve the hearing of any evidence. Therefore, the respondent’s request to dismiss and/or Request for Summary Hearing is denied.
Mediation
15The respondent has indicated its willingness to try mediation to resolve the Application. The applicant has not indicated a willingness to participate in mediation to resolve the Application. The applicant shall advise the Tribunal by December 23, 2015 if he is interested in taking advantage of mediation on the understanding that if the mediation is not successful in resolving the Application a hearing will still take place.
order
16For the reasons set out above, the Tribunal orders as follows:
a. The respondent’s request to remove the personal respondent is granted and the style of cause is amended accordingly.
b. The respondent’s request to dismiss and/or request for a summary hearing are denied.
c. The applicant shall advise the Tribunal by December 23, 2015 whether he is willing to try mediation to resolve the Application.
17I am not seized.
Dated at Toronto, this 15^th^ day of December, 2015.
“Signed By”
__________________________________
Keith Brennenstuhl Vice-chair