Steve Rock v. FCA Canada Inc., 2015 HRTO 878

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steve Rock

Applicant

-and-

FCA Canada Inc.

Respondent

INTERIM DECISION

Adjudicator: Eli Fellman

Date: July 2, 2015

Citation: 2015 HRTO 878

Indexed as: Rock v. FCA Canada Inc.

WRITTEN SUBMISSIONS

Steve Rock, Applicant

Self-represented

FCA Canada Inc., Respondent

Clifford Hart, Counsel

Unifor Local 1285, Affected Party

Laura Johnson, Counsel

1This Application alleges discrimination with respect to employment because of disability and reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This Interim Decision addresses several issues including: the correct name of the corporate respondent; the Tribunal’s Notice of Intent to Defer; the applicant’s request to add a number of employees of the respondent and members/officers of Unifor Local 1285 (the “Union”) as personal respondents; and the applicant’s request for production of certain documents.

Correct name of the corporate respondent

3The Application as filed identifies the respondent as “Chrysler Canada”. The respondent’s counsel stated in its May 25, 2015 submission that the respondent is now known as “FCA Canada Inc.” The other parties to this proceeding have not commented on this issue. The Application is therefore amended to identify the respondent as FCA Canada Inc. and the style of cause is also amended accordingly.

Notice of Intent to Defer

4On May 4, 2015, the Tribunal issued a Notice of Intent to Defer the Application because there is an ongoing grievance involving the same parties and dealing with the subject matter. The Tribunal received written submissions from all parties.

5The applicant’s employment was terminated on February 19, 2015, and the Union filed a grievance contesting the termination on February 20, 2015. On May 28, 2015, the Union decided to withdraw the grievance and informed the respondent accordingly.

6As the grievance has been withdrawn, the issue of deferral of this Application pending the completion of a related grievance proceeding is now moot.

7The Application will therefore proceed in the normal fashion and the respondent is required to file a Response (Form 2) within 35 days of the date of this Interim Decision.

Adding Personal Respondents

8The applicant filed a Request for an Order During Proceedings (“RFOP”) seeking to add eight employees of the respondent as personal respondents. The applicant does not explain why these individuals should be added as personal respondents and the narrative portion of the Application does not mention these individuals. The RFOP also seeks to add three members/officers of the Union as personal respondents. The applicant states that two of these individuals served as chair and representative of the Equity Committee and they used their position “… to discriminate against Mr. Rock to have him charge and terminated”.

9Both the respondent and the Union oppose the applicant’s request to add the personal respondents.

10Rule 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.

11The 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.

12Considering all the circumstances and the criteria identified in Persaud, I find that it is not necessary to add any of the 11 individuals discussed above as respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

13The Application does not indicate if any of the 11 individuals had involvement or personal knowledge of the issues and incidents contained in the Application. Further, in the event any of these individuals had some involvement or personal knowledge, it likely arose during the course of their duties with the respondent or the Union respectively. As there is no allegation contained in the Application that any of these individuals engaged in individual conduct that is contrary to the Code apart from the discharge of their duties, there is no compelling reason to add any of them as personal respondents. The request is therefore denied.

14This decision does not deny the applicant the right to call any employee of the respondent or member/officer of the Union as a witness during the hearing if he believes that they can provide testimony that is relevant to the issues in the Application. More information can be found at the Tribunal’s website: http://www.sjto.gov.on.ca/hrto/.

Production of Documents

15The applicant’s RFOP also seeks an order requiring the respondent to produce all email and correspondence relating to all incidents involving the applicant back to October 2011, and certain named members/officers of the Union to produce emails that relate to the applicant. The respondent and the Union both object to this request as premature.

16Rule 16 addresses disclosure of documents. It states:

Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):

(a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document that party must describe the nature of the document and the reason for making the claim; and

(b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.

17The applicant is entitled to receive disclosure of arguably relevant documents in the respondent’s possession in accordance with timeline contained in Rule 16. The applicant’s request for production is premature as the Tribunal has yet to schedule a hearing for this matter.

18Rule 16 only applies to parties to a proceeding. The Application as filed does not name the Union as a respondent, and the request to add certain named members/officers of the Union as personal respondents has been denied.