HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Steven McCullough
Applicant
-and-
Toyota Motor Manufacturing Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: McCullough v. Toyota Motor Manufacturing Canada Inc.
WRITTEN SUBMISSIONS
Steven McCullough., Applicant
No one appearing
Toyota Motor Manufacturing Canada Ltd., Sean Ritchie, Frank Ricci and Jay Friesent, Respondents
Ted Kovacs, Counsel
1This is an Application filed on 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 because of disability. The applicant alleges that the respondent dismissed him because of absenteeism caused by a disability. The hearing of this matter is scheduled on August 13 and 13, 2015.
Removal of Individual Respondents
2On March 11, 2015, the respondents filed a Request for an Order During Proceedings in which they seek removal of the individual respondents. The applicant did not file a Response to this Request and the time for doing so has passed.
3Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed, as follows, at paragraph 5:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is 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 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.
4The respondents submitted the criteria for removal of an individual respondent set out in Persaud, supra, are met in this case. The respondents submitted that Toyota Motor Manufacturing Canada Ltd. (“Toyota”) is a corporate respondent and is alleged to be liable for the same conduct as the individual respondents. The respondents submitted that Toyota accepts vicarious liability for the conduct of the individual respondents, who, they submitted, were acting within the scope of their employment duties at all times. The respondents submitted that Toyota can respond to or remedy any infringement of the Code that the Tribunal may find. The respondents submitted that the actions of the individual respondents are not central to the Application and submitted that, in fact, the Application contains no specific allegations against any of the individual respondents. Finally, the respondents submitted that removal of the individual respondents will not prejudice the applicant.
5I find it unnecessary to address all of the factors set out in Persaud, supra. There is a corporate respondent, Toyota, that accepts vicarious liability and its ability to meet any remedy has not been challenged. The Application does not contain any specific allegations against any of the individual respondents. Accordingly, there is no compelling reason to continue to include the individual respondents in the Application and there is no indication that the applicant will suffer prejudice if they are removed. In these circumstances, the Tribunal shall remove the individual respondents and amend the style of cause accordingly.
Order
6The Tribunal orders as follows:
- The individual respondents are removed from the Application and the style of cause shall be amended accordingly;
7I am not seized.
Dated at Toronto, this 10^th^ day of April, 2015.
“Signed by”
Douglas Sanderson
Vice-chair