HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Dillon

Applicant

-and-

Group 4 Secure Solutions (Canada) Ltd.

Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard

Date: August 24, 2016

Citation: 2016 HRTO 1126

Indexed as: Dillon v. Group 4 Secure Solutions (Canada) Ltd.

WRITTEN SUBMISSIONS

Group 4 Secure Solutions (Canada) Ltd., Tina Baldwin, Jamila Soanes and Tom Doyle, Respondents

Carol Chan, Counsel

INTRODUCTION

1This is an Application filed on January 26, 2016, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability.

2The applicant alleges that the respondents failed to accommodate his disability following his return to work from a leave of absence for surgery.

3The respondents filed their Response on June 10, 2016 and a Request for an Order During Proceedings on July 18, 2016 requesting the removal of the individual respondents (“request to remove the individual respondents”) as parties to the proceeding. At all times material to the Application, Mr. Tom Doyle was the General Manager responsible for the corporate respondent’s Toronto branch, Ms. Jamila Soanes was the Pension and Benefits Coordinator and Ms. Tina Baldwin was the Director, Human Resources and Labour Relations.

4The applicant failed to file a Reply or a Response to the request to remove the individual respondents and the time for doing so is now passed.

DECISION AND ANALYSIS

Request to Remove the Individual Respondents

5The purpose of this Interim Decision is to address the request to remove the individual respondents. 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 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 [now section 46.3 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.

6The 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 an individual respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether an individual respondent should be removed:

1. Is there 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 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?

7In considering whether any compelling reason exists to continue the proceeding against individual respondents, one way of approaching this question is to ask whether it is necessary to involve these individuals as parties in order to have a fair, just and expeditious resolution of the merits of the complaint.

8The respondents submit that there is a corporate respondent in the Application that is alleged to have breached the Code in all the same respects as are the individual respondents. In addition, there is no issue raised as to the corporate respondent’s deemed or vicarious liability for the actions of the individual respondents and the corporate respondent expressly accepts that it is liable for all of the actions of the individual respondents.

9The respondents further argue that the corporate respondent is fully able to respond to or remedy the alleged Code infringement. The majority of the remedies sought are remedies that the corporate respondent can satisfy. There are two remedies against Ms. Baldwin that the corporate respondent would not be able to satisfy as she is no longer an employee at the corporate respondent. The first is a request to discipline Ms. Baldwin, which the respondents submit is an inappropriate request in a remedial human rights process. The second is that Ms. Baldwin be trained on the duty to accommodate, harassment and discrimination and sensitivity towards employees returning from medical leaves. The respondents argue that Ms. Baldwin is no longer an employee of the corporate respondent and as such, no longer has any role in the process of accommodations in the corporate respondent’s office.

10The respondents argue that there is no compelling reason to continue the Application against any of the individual respondents. They were all acting within the scope of their employment. Finally, the respondents argue that the removal of the individual respondents would not prejudice the applicant’s right to a full hearing on the merits nor would it prevent access to the individual respondents as witnesses.

11I agree with the respondents’ submissions. I find that the corporate respondent has accepted that it is deemed or vicariously liable for the actions of the individual respondents and the individual respondents were acting within the scope of their employment. I find that the corporate respondent is able to satisfy the remedies sought. Finally the applicant has not demonstrated that he would be prejudiced by the removal of the individual respondents.

12In my view, considering all the circumstances, it is not necessary to involve Mr. Tom Doyle, Ms. Jamila Soanes and Ms. Tina Baldwin as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

13The respondents’ request to remove Mr. Tom Doyle, Ms. Jamila Soanes and Ms. Tina Baldwin as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.

14I am not seized of this matter.

Dated at Toronto, this 24^th^ day of August, 2016.

“Signed By”

Josée Bouchard

Vice-chair