HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gregory Wilkinson
Applicant
-and-
The Regional Municipality of Waterloo
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Wilkinson v. Regional Municipality of Waterloo
WRITTEN SUBMISSIONS
Gregory Wilkinson, Applicant
Self-represented
The Regional Municipality of Waterloo, Jim Ionnou and Ann Steadman, Respondents
Carl W. Peterson, Counsel
Introduction
1This Interim Decision addresses the respondents’ Request for an Order During Proceedings in which they request that the Tribunal remove the two individual respondents and strike the 2013 allegations in the Application as untimely.
2This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant named his employer, the Regional Municipality of Waterloo (the “Region”), his supervisor, Jim Ioannou, and the Region’s Return to Work Co-ordinator, Ann Steadman, as respondents.
analysis and decision
Request to remove individual respondents
3Rule 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.
4The 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.
5The applicant, a bus driver with the Region, alleges that he was discriminated against by the respondents when they failed to ensure that he returned to a job that he could do within his restrictions following shoulder surgery in 2013. This decision was apparently made by the Return to Work Coordinator, Ms. Steadman, and communicated to him by his Assistant Manager, Mr. Ionnou.
6The applicant further alleges that upon his return to work on November 25, 2013, he met with Mr. Ionnou and asked him if he could assign the applicant to buses that did not have stiff steering. Mr. Ionnou is alleged to have responded that he could not do that unless the applicant applied for an accommodation.
7The applicant further alleges that following his return, he noticed as “time went by” that he “noticed a pattern of much older, harder to drive buses consistently being assigned” to his runs. The applicant alleges a number of persons, including but not limited to Mr. Ionnou, were involved in the what the applicant suspects was the deliberate assignment of buses that he could not safely drive because they aggravated his shoulders.
8The applicant states that he applied for accommodation in early December 2014 and Ms. Steadman placed him on immediate sick leave until he could provide medical information assuring the respondents that he could safely drive a bus. Following what might have been intervention by his union representative, Ms. Steadman reversed her decision two days later.
9In the Request to remove the individual respondents, the Region submits that is able to respond to and remedy the alleged infringements, and accepts that it is liable for the acts of the individual respondents, all of whom it submits were acting within the scope of their employment.
10The applicant did not file a Response to the Request for an Order, but did address this issue briefly in his Reply (the respondents had raised this issue in their Response as well). He is of the belief that “Mr. Ionnou and Ms. Steadman personally made the decision not to accommodate” him upon his return to work, but does not suggest that this decision was outside the scope of their employment. In such a circumstance, inevitably individuals will be tasked with making such decisions. Even if they make wrong decisions (as the applicant alleges) within the scope of their employment, this is not a sufficient reason to proceed against them personally.
11With respect to the assignment of buses, the applicant suspects that many people may have been involved in the decision to give him a disproportionate number of older buses, with harder steering. Ms. Steadman is not alleged to have been involved in this, and the allegations against Mr. Ionnou suggest that he was more peripherally involved than other persons. Indeed, the allegations against Mr. Ionnou appear to fall into the realm of speculation.
12Finally, the decision to place the applicant on sick leave was reversed shortly after it was made, and appears to have been a decision made by the respondents in response to new medical information, again in the course of their employment. Moreover, on the face of the Application, Mr. Ionnou’s alleged involvement was limited to conveying the decision to the applicant. This is not a sufficient basis for maintaining these two individuals as respondents.
13There is no compelling reason to continue against these two individuals and removing them as respondents will not prejudice the applicant. The applicant has not sought individual remedies against these individuals or made submissions that any of these individuals were central to his Application such that their presence is necessary.
14For all of these reasons, the respondents’ Request is granted and the personal respondents, Jim Ionnou and Ann Steadman, are removed as parties to this proceeding. The style of cause will be amended accordingly.
Delay
15The only allegations the respondents state are out of time are those from 2013. It would appear that the two allegations from that time period relate to the refusal to offer the applicant “another job” and the refusal of his first request to have buses with easier steering assigned to him when he returned to work on November 25, 2013. The applicant does not specify what this other job might be, and provides no further particulars. He also does not provide any particulars relating to the time between the November 2013 meeting and the difficulties he encountered starting in November 2014.
16These allegations may form part of the narrative and I am not prepared to say that the applicant may not call evidence about them. Moreover, given the brief nature of them, it would appear that the respondent will not be unnecessarily burdened in responding to them. I am not prepared to grant this request at this time. The respondent can make submissions about delay in final argument should it so choose.
order
17In summary, I have made the following orders:
a. The respondents’ request to remove the individual respondents, Jim Ionnou and Ann Steadman, is granted and the style of cause amended accordingly; and
b. The respondents’ request to remove allegations that pre-date November 2014 is denied.
Dated at Toronto, this 13th day of September, 2016.
“Signed By”
Naomi Overend
Vice-chair