Konesavarathan v. The Ontarion Inc., 2016 HRTO 1206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarathan Konesavarathan Applicant

-and-

The Ontarion Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: September 14, 2016 Citation: 2016 HRTO 1206 Indexed as: Konesavarathan v. The Ontarion Inc.

WRITTEN SUBMISSIONS

Kovarathan Konesavarathan, Applicant Self-represented

The Ontarion Inc., Respondent Emilio Ghloum, Representative

Introduction

1This Interim Decision addresses the applicant’s request to add a personal respondent to this Application.

2The applicant filed his Application on February 22, 2016 alleging discrimination with respect to employment because the respondent did not publish two articles he wrote for the respondent newspaper allegedly because of the applicant’s race, colour, place of origin, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

request to add a personal respondent

3The applicant filed a Form 10 Request for an Order During Proceedings (“RFOP”) requesting that the editor of the respondent at the time, Emilio Ghloum, be added as a personal respondent. The respondent filed a Form 11 Response to a Request for an Order objecting to the applicant’s request.

4The applicant argues Mr. Ghloum's conduct is central to the issue, and he wonders why the corporate respondent should suffer the full monetary consequences for his conduct.

5The applicant further asserts that the corporate respondent is a small organization and he is concerned about its ability to satisfy any financial remedy.

6The respondent argues that the applicant's allegations revolve around the corporate respondent’s editing and publishing practices, and allege that the proposed personal respondent’s conduct was in accordance with standard editorial and publishing practices that have been in place at the corporate respondent for years. It argues that to add Mr. Ghloum as a personal respondent would be to deviate away from the facts and evidence present in this case.

7The respondent also states that Mr. Ghloum was acting as a representative of the corporate respondent at the time of the alleged incidents and his conduct was in line with organizational practices.

analysis and decision

8The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

9When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 (“Persaud”) when deciding whether to add or remove a personal respondent when there is an organizational respondent to the Application. These factors focus mainly on whether the corporate respondent is responsible for the conduct of the personal respondent, and whether there is a compelling legal reason for an individual to be retained as a personal respondent. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Persaud at para. 5.

10Applying the considerations set out in Smyth and Persaud, I find it would not be appropriate to add the personal respondent. The applicant did not make any allegations in his Application that would support a finding against the proposed personal respondent.

11In addition, the corporate respondent states that the proposed personal respondent’s decision was made in the course of his employment duties. There would be no basis for this Tribunal to award a remedy against the personal respondent personally.

12The applicant also did not provide any evidence that would support his supposition that the corporate respondent would not be able to satisfy the monetary remedy the applicant seeks.

13I do not find it appropriate to add the proposed personal respondent as a party to the Application.

order

14The applicant’s request to add a personal respondent is denied.