Smith v. Toyota Motor Manufacturing Canada Inc., 2016 HRTO 1294

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kenneth Smith Applicant

-and-

Toyota Motor Manufacturing Canada Inc. Respondent

INTERIM DECISION

Adjudicator: Bruce Best Date: October 5, 2016 Citation: 2016 HRTO 1294 Indexed as: Smith v. Toyota Motor Manufacturing Canada Inc.

WRITTEN SUBMISSIONS

Kenneth Smith, Applicant Self-represented

Toyota Motor Manufacturing Canada Inc., Randy Hanuska, Nancy Jacobs, Respondents Ted Kovacs, Counsel

Introduction

1This 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 Application names the applicant’s employer, Toyota Motor Manufacturing Canada Inc. (“TMMC”), and two individual respondents, Randy Hanuska, who is manager of human resources for TMMC, and Nancy Jacobs, an occupational therapist with TMMC.

Request to Remove the Individual Respondents

2Rule 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 (“Sigrist”) at para. 42, the Tribunal held that where there is an organizational respondent who is able to respond to or remedy an alleged Code breach, and where there is no issue as to deemed or vicarious liability, an individual respondent should not be named absent some compelling juridical reason. The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) at para. 5,

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?

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.

3The respondents submit that the individual respondents should be removed as parties. They claim that they were acting at all times within the scope of their employment duties, and TMMC accepts liability for any act done in the course of their employment with respect to this Application.

4The applicant indicated that Nancy Jacobs’ conduct was central to his allegations respecting his attempts to be accommodated in the workplace. The applicant further indicated he had complained to three individuals in Mr. Hanuska’s department about his alleged difficulties in being returned to work, though he acknowledged Mr. Hanuska was not directly involved.

5In my view, considering all the circumstances, it is not necessary or desirable to involve either Randy Hanuska or Nancy Jacobs as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

6Mr. Hanuska was, first of all, not personally involved. He is named as the manager of the human resources department, based on the alleged failure of that department to act on the applicant’s complaints. There is no need to name him as an individual respondent, as TMMC is responsible for, and accepts responsibility for, any liability incurred because of actions taken by his staff.

7With respect to Ms. Jacobs, though she was directly involved in the applicant’s return to work attempts, there is nothing indicating that she was acting outside of the scope of her employment. No remedy is being sought against her personally. TMMC is prepared to take responsibility for her actions. Though she may be a necessary witness should the matter proceed to a hearing, in my view, there is no compelling reason for her to be named as a party in order for there to be a fair, just and expeditious resolution of this matter.

8The respondents’ request to remove Randy Hanuska and Nancy Jacobs as individual respondents to the Application is therefore granted. The style of cause is amended accordingly.

9I am not seized.