Egan-Wyer v. Ripley’s Aquarium of Canada, 2016 HRTO 214

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tevin Egan-Wyer

Applicant

-and-

Ripley’s Aquarium of Canada and Stacy Stratakos

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: February 18, 2015

Citation: 2016 HRTO 214

Indexed as: Egan-Wyer v. Ripley’s Aquarium of Canada

WRITTEN SUBMISSIONS

Tevin Egan-Wyer, Applicant

Self-represented

Ripley’s Aquarium of Canada and Stacy Stratakos, Respondents

Donna D’Andrea, Counsel

Introduction

1The applicant self-identifies as a black person. The applicant alleges that he was discriminated against because of his race when his employment was terminated by the corporate respondent. In particular, the applicant alleges that at the time that he was terminated, four other employees were terminated, two of whom are also black.

2The applicant alleges further that he was harassed by the individual respondent during his employment. He alleges that the individual respondent asked the applicant to take his shirt off, hugged him, described her sexual activities with her boyfriend, and asked the applicant questions about his own sexual practices.

3The respondents filed a Request for Order During Proceedings (“RFOP”) requesting a summary hearing and the removal of the individual respondent.

4The applicant did not respond to the RFOP.

DECISION AND ANALYSIS

Summary Hearing Request

5The respondents’ request for a summary hearing is denied and the Application will be processed in the normal course. Rule 19.6A of the Tribunal’s Rules of Procedure provides that the Tribunal need not give reasons for a decision not to hold a summary hearing.

Removal of Individual Respondent

6Rule 1.7(b) of the Tribunal’s Rules of Procedure 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.

7The 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:

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 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.

8On the face of the Application, it is apparent that the conduct of the individual respondent is a central issue in this case. The applicant alleges that he was subject to sexual harassment and solicitation by the individual respondent. At this stage in the proceedings, it is unclear whether these allegations are tied to the applicant’s race. In the event the applicant’s harassment allegations are substantiated, a remedy may be sought against the individual respondent regardless of the fact that the corporate respondent is a party and able to remedy any discrimination that may be found. Further, if harassment is found, the individual respondent would not be acting within the course of her employment. For these reasons, it would not be appropriate to remove the individual respondent at this time.

9For these reasons, the request to remove the individual respondent is denied.

DECISION

10The respondents’ requests for a summary hearing and the removal of the individual respondent are denied.

11The parties are directed to advise the Tribunal within seven (7) days of this Interim Decision if they agree to proceed to mediation. In the event the parties do not consent to mediation, the matter will be placed in the hearing queue.