HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Timmins
Applicant
-and-
Metro Ontario Inc. and Kim Coughlin
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Timmins v. Metro Ontario Inc.
WRITTEN SUBMISSIONS
John Timmins, Applicant
Cecil Norman, Representative
Metro Ontario Inc. and Kim Coughlin, Applicant
Christian Vernon, Counsel
1This Interim Decision addresses the applicant’s request to add a personal respondent to the Application and the respondents’ request to remove two personal respondents from the Application.
2In his Application, the applicant alleged that the respondents discriminated against him because of disability and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In particular, the applicant alleged that his supervisor and the corporate respondent’s management harassed him and failed to provide reasonable accommodations for his creed and disability. The applicant named the corporate respondent as a respondent as well as two personal respondents: Genevieve bich, the Vice President of Human Resources, as well as Ryan Netherton, the Manager of the store where the applicant worked.
Request to add personal respondent and request to remove personal respondents
3The applicant filed a Request for Order During Proceedings (“RFOP”) in which he sought to add his supervisor, Kim Coughlin, as a personal respondent.
4The respondents filed an RFOP requesting that the Tribunal remove Ms. bich and Mr. Netherton as personal respondents.
5The analysis applied by the Tribunal when dealing with requests to add or remove 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:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
6When 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.
7Applying the considerations set out in Smyth and Persaud, I find that it is appropriate to add Ms. Coughlin as a personal respondent. However, I find that it is appropriate to remove Ms. bich and Mr. Netherton as personal respondents.
8In his Application, the applicant alleged that Ms. Coughlin harassed him because of his creed and his disability. The allegations against Ms. Coughlin are central to the Application. Section 46.3 of the Code, which deems an employer liable for the actions of officers, officials, employees and agents, does not apply with respect to those sections of the Code that deal with harassment. Accordingly, it is possible that the corporate respondent might not be liable for Ms. Coughlin’s actions, if they are found to have infringed the applicant’s rights under the Code. Therefore, I find it appropriate to add Ms. Coughlin as a personal respondent.
9In my view, there are no specific allegations in the Application against either Ms. bich or Mr. Netherton that are capable of supporting a personal remedy against them. The applicant does not refer to Ms. bich at all in the narrative of the Application. While he does mention Mr. Netherton, his allegations either lack particulars or relate to actions or inactions that would fall within the scope of Mr. Netherton’s employment duties and for which the corporate respondent would be vicariously liable if the Tribunal finds that his conduct violated the Code.
10For these reasons, the applicant’s request to add Ms. Coughlin as a personal respondent to his Application is granted. The respondents’ request to remove the two other personal respondents is also granted.
MEDIATION-ADJUDICATION
11The hearing of this Application is scheduled to take place March 16-17, 2016. The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal prior to the first day of the hearing, or at the outset of the hearing.
ORDER
12For the foregoing reasons, the Tribunal makes the following order:
a. The applicant’s request to add Kim Couglin as a respondent to his Application is granted.
b. The respondents’ request to remove Genevieve bich and Ryan Netherton as personal respondents is granted.
Dated at Toronto, this 17th day of February, 2016.
“Signed By”
Jo-Anne Pickel
Vice-chair