Julian Kalac v. Therapure Biopharma Inc., 2015 HRTO 441

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julian Kalac

Applicant

-and-

Therapure Biopharma Inc.

Respondent

INTERIM DECISION

Adjudicator: Eli Fellman

Date: April 2, 2015

Citation: 2015 HRTO 441

Indexed as: Kalac v. Therapure Biopharma Inc.

WRITTEN SUBMISSIONS

Julian Kalac, Applicant

Self-represented

Therapure Biopharma Inc., Respondent

Rich Appiah, Counsel

1This 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”).

2This Interim Decision addresses the applicant’s March 11, 2015 Request for an Order During Proceedings (“RFOP”) asking to amend his Application. The applicant wants to amend his Application by:

a. including additional allegations;

b. addressing the circumstances surrounding the termination of his employment on March 4, 2015;

c. amending the requested remedies; and

d. adding the respondent’s Chief Operating Officer (COO) as a personal respondent.

3The respondent does not object to the applicant’s proposed amendments summarized in paragraphs 2(a) through 2(c) above. The request to amend to add new allegations has been made early enough in the proceeding that there is no prejudice to either the respondent or the Tribunal’s hearing process. This portion of the request is granted.

4The respondent objects to the request to add its COO as a personal respondent. It does not dispute that the COO was personally involved in responding to the applicant’s complaints and requests for accommodation, as well as the applicant’s suspension and the eventual termination of his employment.

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 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.

7The applicant submits the COO was the key perpetrator of several alleged incidents and was the sole person responsible for the continued Code violations since January 23, 2015. The applicant goes on to describe a number of alleged statements made to him by the COO which he believes constitute harassment, discrimination and reprisal.

8The respondent submits that there is no compelling reason to add the COO as a personal respondent. He was, and is, an employee of the named corporate respondent, and was acting in his capacity as the Chief Operating Officer during the period in question. The respondent admits its vicarious liability for all of the COO’s conduct. In other words, the COO’s alleged conduct, if proved, was undertaken by him while executing his responsibilities as Chief Operating Officer. The respondent acknowledges that COO will be an integral participant in any Tribunal hearing, and can be summonsed to testify by either party.

9I agree with the respondent’s submissions on this issue. In my view, considering all the circumstances, it is not necessary to add the COO as a personal respondent in order to have a fair, just and expeditious resolution of the merits of the Application. The allegations against COO relate to the execution of his employment duties. The corporate respondent is the COO’s employer, and admits that it is vicariously liable for all of the COO’s conduct. The failure to add the COO as a personal respondent does not prejudice the applicant in these circumstances.

Order

10The applicant’s request to amend the Application is granted in part. The additional allegations, details and remedies contained in “Schedule A” and “Schedule C” of the applicant’s March 11, 2015 RFOP. In addition, the 28-page document entitled “Proposed Amendments to Application” which was attached to the applicant’s RFOP shall also form part of the amended Application.

11The respondent was previously granted an extension of time until April 10, 2015 to file a Response (Form 2) to the Application pursuant to a RFOP filed by the respondent on March 25, 2015. In order to provide the respondent with sufficient time to address the additional allegations contained in the amended Application, a further extension of time is warranted in the circumstances. Therefore, the respondent must file a Response within 10 days of the date of this Interim Decision.

12I am not seized.