McEwen v. Ontario (Health and Long-Term Care), 2016 HRTO 221

Human Rights Tribunal of Ontario

B E T W E E N:

James McEwen Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: February 19, 2016 Citation: 2016 HRTO 221 Indexed as: McEwen v. Ontario (Health and Long-Term Care)

WRITTEN SUBMISSIONS

James McEwen, Applicant Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, Respondent Matthew Horner, Counsel

Introduction

1This Application alleges discrimination with respect to services because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application named both an organizational respondent, Her Majesty the Queen in Right of Ontario as represented by the Ministry of Health and Long-Term Care, and an individual respondent, Kathleen Wynne, the premier of the province of Ontario.

2This Interim Decision addresses the respondents' Request for Order During Proceedings to remove the individual respondent. The applicant has not filed a Form 11 and the time for him to do so has elapsed. He has, however, outlined his position on the respondents' request in his Reply. He opposes the request to remove Kathleen Wynne and indicates that he would also like the former Minister of Health and Long-Term Care, Deb Mathews, added as a personal respondent.

Removing the Individual Respondent

3In Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 4, the Tribunal reiterated its concern about the "unnecessary naming of personal respondents" and offered a framework for considering whether to remove personal respondents:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

4The applicant does not allege that Kathleen Wynne or Deb Mathews were directly involved with the applicant's interaction with the respondent, or otherwise conducted themselves in a discriminatory manner.

5Kathleen Wynne is named as a respondent solely because she is the premier of the province on Ontario and the applicant seeks to add Deb Mathews because she was the former Minister in this portfolio. These are insufficient reasons for naming these individuals as respondents. The applicant has not identified any prejudice that might result from removing Kathleen Wynne as a respondent to the proceeding or in refusing to add Deb Mathews.

6Accordingly, I order Kathleen Wynne removed as a party to this proceeding. Although a Form 10 has not been filed by the applicant, the request to add Deb Mathews as a personal respondent in this matter is denied.

7I am not seized of this matter.