HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Julio Garcia
Applicant
-and-
Commissionaires Great Lakes and Bill Neeson
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Garcia v. Commissionaires Great Lakes
1The purpose of this Interim Decision is to address the respondents’ request to remove four individual respondents as parties this Application.
2In his Application, the applicant alleges discrimination in employment on the basis of ancestry, ethnic origin, place of origin and race. The allegations in the Application are somewhat unclear and several have no apparent connection to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”); however, the applicant does appear to allege that his personal characteristics identified above resulted in adverse treatment. He alleges that he was asked about his “background” in the job interview and was criticised for his accent. He also alleges unfair treatment during his employment and that he was dismissed from his employment for discriminatory reasons.
3The respondents filed a Response (Form 10) in which they deny the allegations.
4On April 8, 2015, the respondents filed a Request for Order During Proceeding seeking the removal of the individual respondents. The applicant opposed the Request.
5The Request is granted in part 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.
5The 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:
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.
7The applicant argued that one individual respondent in particular, Bill Neeson, should remain a party to the Application because it was this individual who asked the applicant about his background when he interviewed the applicant and it is alleged was the person who terminated his employment. It is also argued that the alleged conduct of Mr. Neeson in relation to the applicant constitutes harassment.
8At this early stage of the proceeding, before the parties have completed their productions to each other and filed their hearing materials, it will generally be assumed that the allegations in the Application are capable of proof. The Tribunal will not quickly remove a responding party from the Application where it appears that they have played a central role in the dispute. At this point and despite the comments above about the nature of the allegations it would not be appropriate to remove Mr. Neeson at this stage.
9As regards the other three individual respondents, one does not appear to be mentioned and the others, while identified in the Application, do not appear to have any allegations made against them. In all of the circumstances I find that these three individuals should be removed as parties from the Application because it does not appear to have any allegations made against them, and in any event they were at best very minor players in the narrative of the applicant’s concerns.
10I am not seized of this matter.
Dated at Toronto, this 12th day of June, 2015.
“Signed by”
David Muir
Vice-chair