HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henroy Haughton

Applicant

-and-

Genco Distribution Systems of Canada Inc.; Jody O’Brien and Randstad Canada

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: April 8, 2016

Citation: 2016 HRTO 443

Indexed as: Haughton v. Genco Distribution Systems of Canada Inc.

1This Application was filed on May 23, 2015 and alleges discrimination in employment on the basis of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2This hearing is scheduled to begin on May 16 and 17, 2016.

3The respondents Randstat and Sarah Feere (the Randstad respondents) were or are the applicant’s employer. Genco Distribution Systems of Canada Inc. and Jody O’Brien (the Genco respondents) are the workplace and a supervisor of the enterprise where the applicant worked until injured.

4In his Application the applicant alleges that he was terminated by both sets of respondents in whole or in part because of his disability and/or in whole or in part in reprisal for his having previously sought accommodation and/or because he previously sought to vindicate his right to be free from discrimination in his employment.

5On March 31, 2016 the Randstad respondents filed a Request For Order During proceeding seeking to remove the personal respondent Sarah Feere. The applicant although afforded an opportunity to do so did not respond to the Request.

6The Request is granted and the style of cause amended accordingly.

7Rule 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 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.

[12] The 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 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.

13In their Request the respondents rely on the Persaud factors above and made the following submissions:

a. There is a corporate respondent that is liable for the conduct of the individual in question;

b. There is no issue concerning the corporate respondent’s liability for the alleged conduct. Moreover there is no basis for personal liability in the allegations as against the individual respondent;

c. The corporate respondent is able to respond to or otherwise remedy any alleged violation that might be found;

d. There is no compelling reason to continue the Application as against the personal respondent;

e. There is no prejudice to any party and none has been alleged if the personal respondent is removed

14I accept the respondent’s submissions as briefly summarized above. I also note that there are no allegations of discriminatory conduct by the proposed personal respondent. In my view there is no reason to continue this Application as against the personal respondent. For the reasons set out above the personal respondent Sarah Feere is removed from the Application and style of cause amended accordingly.

15I am not seized of this case.