HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Timmins
Applicant
-and-
Metro Ontario Inc.
Respondent
INTERIM DECISION
Adjudicator: Eli Fellman
Indexed as: Timmins v. Metro Ontario Inc.
WRITTEN SUBMISSIONS
John Timmins, Applicant
Cecil Norman, Representative
Metro Ontario Inc. genevieve bich and Ryan Netherton, Respondents
Christian Vernon, Counsel
1This Application alleges discrimination with respect to employment because of disability and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2This Interim Decision addresses the respondents’ request to remove the personal respondents as parties and the applicant’s request to add an additional personal respondent.
Request to remove personal respondents
3The Application names the Vice-President, Human Resources (VP) for the parent corporation of the corporate respondent as a personal respondent. The narrative portion of the Application does not mention this individual and she does not appear to have had any direct or personal involvement in the incidents described in the Application.
4The respondents submit the VP should be removed as a personal respondent because she has no connection to the facts alleged in the Application and no personal knowledge regarding them.
5The applicant argues the VP should remain as a personal respondent because she did not exercise her power to prevent the discrimination and harassment alleged in in the Application.
6The other personal respondent is the manager (“manager”) of the store where the applicant worked. The applicant alleges that the manager: failed to address the applicant’s complaints of harassment; singled out the applicant for differential treatment and harassment; created a hostile workplace that resulted in a poisoned work environment; failed to grant the applicant’s request not be scheduled on Saturdays for reason of religious accommodation; incorrectly chastised the applicant for alleged work performance errors; and became distant shortly after the applicant provided him with a list of his medications.
7The respondents submit that the manager should be removed as a personal respondent because the allegations contained in the Application do not relate to any actions taken in a personal capacity, and do not suggest the manager was acting outside the course of exercising his regular duties in managing the applicant.
8The corporate respondent expressly accepts the liability for the manager’s actions, if liability is established. The manager continues to be an employee of the corporate respondent and the corporate respondent has committed to calling the manager as a witness in the proceeding.
9The applicant submits that the manager should not be removed as a personal respondent because his discriminatory behaviour and conduct are central to the Application and contrary to the Code. The applicant suggests that the manager may be vicariously liable in the Application, and is not precluded from Code compliance by the mere fact that he was acting within the scope of his employment with the corporate respondent. The applicant wants the Tribunal to find the manager legally responsible for his acts of harassment.
Request to add a personal respondent
10The applicant asks the Tribunal to add his direct supervisor (“supervisor”) as a personal respondent and to direct the corporate respondent to provide her full name.
11The Application alleges that the supervisor: encouraged harassment of the applicant by referring to him as lazy, slow and retarded in the presence of co-workers and customers; was dismissive and abrupt with the applicant and made belittling comments; singled out the applicant for differential treatment and harassment; created a hostile workplace that resulted a poisoned work environment; failed to grant the applicant’s request not be scheduled on Saturdays for reason of religious accommodation; incorrectly chastised the applicant for alleged work performance errors; and unjustly suspended the applicant on September 24, 2014.
12The applicant submits that the supervisor should be added as a personal respondent because her discriminatory behaviour and conduct are central to the Application and contrary to the Code. The applicant suggests the supervisor may be vicariously liable in the Application, and is not precluded from Code compliance by the mere fact she was acting within the scope of her employment with the corporate respondent. The applicant wants the Tribunal to find the supervisor legally responsible for her acts of harassment.
13The corporate respondent submits that the supervisor should not be added as a personal respondent because the allegations contained in the Application do not relate to any actions taken in a personal capacity, and do not suggest that she was acting outside the course of exercising her regular duties in managing the applicant. The corporate respondent submits that the allegations contained in the Application refer to the manner in which the supervisor discharged her supervisory functions.
14The corporate respondent expressly accepts the liability for the actions of the supervisor if liability is established. The supervisor continues to be an employee of the corporate respondent and the corporate respondent has committed to calling the supervisor as a witness in the proceeding.
DECISION
15Rule 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.
16The 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.
17Considering all the circumstances and the criteria identified in Persaud, I find that it is not necessary to name the three individuals discussed above as respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
18The VP has no personal involvement or knowledge of any of the specific issues or allegations contained in the Application. The mere fact that she is a senior executive in the parent company of the corporate respondent does not render her personally liable for these allegations.
19The manager and the supervisor both had personal involvement and knowledge of the specific issues and allegations contained in the Application. However, their allegedly discriminatory conduct and statements occurred while they were discharging their managerial and supervisory responsibilities with respect to the applicant. The allegations primarily concern the manner in which they fulfilled their managerial responsibilities as opposed to their personal conduct towards the applicant. As their personal conduct is not central to the issues in the dispute, there are no compelling reasons to include them as personal respondents.
20This does not mean that their alleged discriminatory conduct and statements cannot amount to a breach of the Code if proven by the applicant. The corporate respondent will be liable for any breaches of the Code committed by its employees, and will be responsible for any ordered remedy. As noted, the corporate respondent accepts liability for the actions of the manager and the supervisor and will call both of these employees as witnesses should this matter proceed to a hearing.
21The respondents’ request to remove genevieve bich and Ryan Netherton as personal respondents to the Application is therefore granted. The style of cause shall be amended accordingly.
22The applicant’s request to add the supervisor as a personal respondent is therefore denied.
23I am not seized of this matter.
Dated at Toronto, this 23rd day of June, 2015.
“Signed by”
Eli Fellman
Vice-chair