Wolde-Yohannes v. Marconi Club of London, 2015 HRTO 90

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Konjet (Connie) Wolde-Yohannes

Applicant

-and-

Marconi Club of London, Sabatino Fabrizio and Theresa Fabrizio

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: January 21, 2015

Citation: 2015 HRTO 90

Indexed as: Wolde-Yohannes v. Marconi Club of London

WRITTEN SUBMISSIONS

Konjet (Connie) Wolde-Yohannes, Applicant

Lori Mishibinijima, Counsel

Teresa Fabrizio and Sabatino Fabrizio, Respondents

Michael Odumodu, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging reprisal and discrimination with respect to employment because of race and disability.

2The personal respondents, Teresa Fabrizio and Sabatino Fabrizio (together "the personal respondents" and separately, "Ms. Fabrizio" and "Mr. Fabrizio") request that they be removed as respondents in the Application. The applicant objects to the request.

FACTS AND ANALYSIS

3The personal respondents submit Mr. Fabrizio was a part-time employee of the respondent employer who was not a manager or the applicant's employer, and had no supervisory function. The personal respondents further submit Mr. Fabrizio already was disciplined by the employer with termination of his employment. The personal respondents further submit Mr. Fabrizio was directed not to speak to staff, other than as a member of the club, and not to attend the workplace except for Ms. Fabrizio's office.

4The personal respondents also submit the respondent employer is participating fully in the Application and the applicant has the opportunity to obtain a remedy against the respondent employer.

5The applicant opposes the removal of the personal respondents. She submits the respondent employer has not indicated it accepts liability for either of the personal respondents' alleged behaviour or for any remedies.

6The applicant further submits Mr. Fabrizio is responsible for the alleged discrimination, and that his comments and his presence at the respondent employer are central issues to the application, and she should be entitled to a remedy from Mr. Fabrizio personally.

7With respect to Ms. Fabrizio, the applicant submits she was responsible for the initial investigation into the applicant's complaint and intimidated witnesses. She was in a conflict of interest because she was investigating her husband's alleged behaviour. In addition, the applicant alleges Ms. Fabrizio reduced the applicant's hours after her injury to punish her for complaining about Mr. Fabrizio's behaviour.

Removal of Individual Respondents

8Section 1.7(b) of the Tribunal's Rules of Procedure states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add or remove a party.

9In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at paragraph 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.

10The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 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?

11The Tribunal framed the question to be considered in considering such a request in Octavius v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1518, as:

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.

12In considering the principles for the removal of personal respondents set out in the above-noted case law, I find it inappropriate to remove the personal respondents.

13The respondent employer has not assumed liability for the actions of either of the personal respondents, and has not indicated it will satisfy any remedy ordered against either of the personal respondents. In addition, the applicant has made allegations with respect to the conduct of both personal respondents that will not be adequately addressed if they are removed as personal respondents. It would be prejudicial to the applicant to remove the personal respondents given the applicant's allegations.

order

14The personal respondents' request to be removed as parties to this Application is denied.