HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Nahirny
Applicant
-and-
Liquor Control Board of Ontario,
Ontario Public Service Employees’ Union, And Ron Scarcello
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Nahirny v. Liquor Control Board of Ontario
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 discrimination with respect to employment because of disability, family status and reprisal. In a Case Assessment Direction issued on May 7, 2015 the Tribunal directed that a summary hearing be held to determine whether all or part of this Application should be dismissed because it has no reasonable prospect of success.
2The applicant is an employee of the organizational respondent, the Liquor Control Board of Ontario (LCBO and LCBO respondents). The individual respondents are all employees of the LCBO. The Ontario Public Service Employees’ Union (OPSEU) is the applicant’s bargaining agent.
3This Interim Decision deals with a Request for Order During Proceeding (“Request”) filed by the LCBO respondents seeking the removal of a number of respondents.
4In his Application the applicant makes the following allegations as against the LCBO respondents:
a. That in June 2013 the Assistant Manager directed the he work outside of his physical restrictions resulting from a car accident. The applicant alleges that when he refused the Assistant Manager yelled at him. The applicant alleges that he was asked to leave the store. The applicant alleges that he subsequently reported this incident to the District Manager. The applicant also alleges that the investigation was flawed.
b. The applicant also alleges that he was transferred from store #2 to store # 8. The applicant alleges that the transfer was discriminatory in that it failed to accommodate his family status needs.
The applicant alleges that he complained about the transfer but received no response. The applicant alleges that he received a letter from B.P. an official of the respondent which did not address his concerns. The applicant states that he asked B.P. to not communicate with him for the next few weeks.
[15] The LCBO has filed a Request to remove the personal respondents from the Application.
[16] The Request is granted in part and the style of cause amended accordingly.
[17] Rule 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](https://www.minicounsel.ca/hrto/2008/14) at para. [42](https://www.minicounsel.ca/hrto/2008/14), 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.
[8] The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, [2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31) at para. [5](https://www.minicounsel.ca/hrto/2008/31):
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.
[9] The LCBO respondents argue that because this case involves in large part an alleged failure to accommodate a Code related need in an employment context it is not necessary to name the individual respondents. The LCBO respondents argue that the applicant has not alleged that the personal respondents engaged in any discriminatory conduct in their personal capacities, rather they were each acting within the course of their employment implementing the LCBO’s policies and procedures.
[10] The LCBO states as well that that it accepts responsibility for the conduct of its employees and is able to respond to any remedial Order the Tribunal may make in the event that a violation of the Code is found to have occurred.
[11] The applicant makes a number of arguments. The general thrust of the applicant’s arguments appears to be that the individual respondents have not provided a factual basis to determine that they have not violated the Code. So for example the applicant declares that “Mr. P., Mr. C. and or Mr. K have not put forward affidavits or declarations that explain their discrimination, malice, intent, harassment and reprisal.” The applicant asks whether we are just to assume that they were acting within the scope of their employment without their job descriptions being filed. The applicant asserts that there must be a hearing to resolve the long list of issues surrounding the credibility of Mr. P etc. The applicant does not disclose what is included in the “long list of issues”. The applicant does make a number of complaints about what he alleges were a reprisal in the way in which an investigation was conducted but he does not plead any facts which would support the conclusion that whatever was done was intended to be a punishment for some Code related complaint of his. The applicant also argues that the LCBO respondents do not mention the policies that they do not have.
[12] The applicant argues that he has experienced reprisal. He also argues in this regard that proof of intent is not necessary to prove discrimination. This proposition is generally true but is not true when a party alleges reprisal. This requires proof of intent. See Noble v. York University, [2010 HRTO 878](https://www.minicounsel.ca/hrto/2010/878).
[13] The applicant also makes arguments about events in 2003 and earlier which he says are connected to events in 2013 – the applicant appears to allege that because one of the personal respondents may breached a settlement reached in 2003 it can be inferred that he reprised against the applicant in 2013. There are no allegations in the application predating June 2013.
[14] The applicant also makes a number of arguments to the effect that because there are disputes about many of the facts in this case; it follows that the personal respondents must remain parties to the Application.
[15] Despite the lengthy arguments of the applicant which largely go to whether or not his Application has merit rather than to the question before me at this stage – I find that it is not necessary to the fair, just and expeditious adjudication of this Application that all of the individual respondents he has identified remain as parties to the Application. The applicant appears to believe that because he has asserted a violation of the Code anyone involved in his many disputes in the workplace are proper parties to this Application. He also appears to believe that merely because it is possible that an individual may have violated the Code they are a proper party to the Application. Neither proposition is an accurate statement of the Tribunal’s approach to this question. I would also observe that with respect to several of the individuals identified by the applicant there do not appear to be any allegations at all that would engage the Code.
[16] Having reviewed the applicant’s submissions I am satisfied that it is not necessary for the fair just and expeditious adjudication of this Application that the personal respondents Mr. P., Mr. C., and Mr. L remain parties. These individuals, each of whom holds a senior management position with the LCBO appear to have played little or no role in the allegations of discrimination and reprisal which are at the heart of this case. At best the applicant asserts that several of these individuals failed to act in some way and that such failure requires that they be a party to an Application. While I agree with the applicant that they may by responsible in some sense for any alleged violations of the Code as managers, that fact alone does not require that they remain as parties. Further it is neither surprising nor a violation of the Code in these circumstances for senior management to leave the day to day operations of a business to local management.
[17] Mr. K and Mr. B are also removed. Mr. K is mentioned once in the Application and identified as a past Manager – that is the Manager prior to the incidents described in the Application. As there are no allegations of discrimination made against Mr. K there is no need for him to remain a party to this proceeding. Mr. B is identified in the Application as the new Manager but it is not clear what role if any he may have played in the events described in the Application other than a failure to leave contact information for the applicant. In any event it is also clear despite the applicant’s lengthy submissions that any role Mr. B did play in the evens giving rise to the Application it was in relation to duties and decisions within the scope of their employment for which the LCBO is responsible.
[18] As regards Ron Scarcello, I leave his status as a party to be resolved after the summary hearing currently scheduled to take place in September. The parties may speak to this issue at that time.
[19] I am not seized of this case.
Dated at Toronto, this 27th day of July, 2015.
“Signed by”
David Muir
Vice-chair