Steven Steele v. Maxville Tank Lines, 2016 HRTO 47

Human Rights Tribunal of Ontario

B E T W E E N:

Steven Steele

Applicant

-and-

Maxville Tank Lines

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: January 12, 2016

Citation: 2016 HRTO 47

Indexed as: Steele v. Maxville Tank Lines

1The purpose of this Interim Decision is to address the respondents’ request to remove two individual respondents as parties to this Application.

2In his Application, the applicant alleges discrimination in employment on the basis of ethnic origin. The applicant alleges that he was treated differently by his employer because he is a non-francophone.

3In 2015 HRTO 1636, the Tribunal denied the respondents’ Request to dismiss the Application at a preliminary stage. This case is currently in the queue to be scheduled for hearing.

4On December 23, 2015, the respondent filed a Request for Order During Proceeding (“Request”) seeking to remove two individual respondents. Although afforded an opportunity to do so, the applicant did not respond to the Request.

5The Request is granted and the style of cause amended accordingly.

6Rule 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.

7The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) 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.

8The respondent argues that in this case all of the Persaud considerations above are present. In particular, the corporate respondent asserts that it is the corporate respondent which is alleged to have violated the Code; that it would be vicariously liable for the actions of the personal respondent who were acting within the scope of their employment responsibilities at the materials times. The corporate respondent also argues there is no question of its ability to respond to or remedy the alleged violation of the Code.

9I agree with the respondents’ submissions. The actions complained of, if discriminatory, were actions taken in the course of the employment of the two individuals. The applicant does not allege personal harassment of the kind that might attract a specific remedial order as against either individual. Finally, I agree with the respondent that there is no basis to conclude that the applicant would suffer any prejudice in the removal of these individuals. There is, in my view, no compelling reason to include either individual in this proceeding. In my view, considering all the circumstances, it is not necessary to the fair, just and expeditious adjudication of this Application to involve the two identified individuals as parties in order to have a fair, just and expeditious resolution of the merits of the Application.

10The Request is granted and the style of cause amended accordingly.

11I am not seized of this matter.