Spence v. University of Western Ontario, 2015 HRTO 1725

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Spence

Applicant

-and-

University of Western Ontario

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: December 23, 2015

Citation: 2015 HRTO 1725

Indexed as: Spence v. University of Western Ontario

WRITTEN SUBMISSIONS

Jason Spence, Applicant

Self-represented

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.

2The Application was filed on September 11, 2015. In addition to the University of Western Ontario (the “University”), a number of individual respondents and Canadian Union of Public Employees, Local 2692 (“CUPE 2692”) were named as respondents in the Application.

REMOVAL OF CERTAIN RESPONDENTS

3The narrative in the Application discusses interactions with one of the individual respondents while she was working as an employee of the University’s rehabilitation services department. The Application does not describe any incidents of alleged discrimination involving the remaining individual respondents. As well, the narrative in the Application does not have any details that connect CUPE 2692 with any allegations of discrimination.

4On November 13, 2015, the Tribunal issued a Notice of Intent to Dismiss against Certain Respondents (the “Notice”). The Notice indicates that a review of the Application fails to identify any acts of discrimination within the meaning of the Code allegedly committed by the individual respondents or CUPE 2692.

5The Notice directed the applicant to make submissions to the Tribunal to explain how each of the named individual respondents and CUPE 2692 is alleged to have breached the applicant’s Code rights.

6The applicant provided submissions on December 10, 2015. For the most part, the submissions repeat what was in the narrative of the Application. They do not provide any details of how each of the named individual respondents and CUPE 2692 is alleged to have breached the applicant’s Code rights.

7Rule 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.

8The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) 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.

9Having reviewed the submissions of the applicant, the Tribunal finds that all of the factors in Persaud have been met. The University, which is the employer of the individual respondents named in the Application, is also alleged to have breached the applicant’s Code rights. In accordance with section 46.3(1) of the Code, any alleged act of discrimination by an employee of the University, is deemed to be an act of the University. The personal respondents were at all times acting within the scope of their job duties. There is no concern that the University will be unable to respond to or remedy the alleged Code infringements.

10This narrative does not describe any incidents where the personal conduct of a named individual is central or might make it appropriate to award a remedy specifically against that individual if an infringement were found; those types of cases typically involve allegations of individual wrongdoing such as, for example, allegations of sexual or racial harassment.

11The narrative and the applicant’s submissions in response to the Notice do not provide any details of alleged acts of discrimination by CUPE 2692 or its members.

12There does not appear to be any prejudice to the applicant or the University that would result from the removal of the individual respondents and CUPE 2692.

13I find that it is appropriate to remove the individual respondents and CUPE 2692 as parties to the Application.

ORDER

14The individual respondents and CUPE 2692 are removed as respondents from this Application and the style of cause is amended to reflect this change. The Application will proceed against the University.

15I am not seized.