Joshua Diesel v. Aramark Canada Ltd., 2016 HRTO 501

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joshua Diesel

Applicant

-and-

Aramark Canada Ltd., Ilijana Culjak Nicolau, Catherine Go,

Colleen Kuypers and Robert Mills

Respondents

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: April 18, 2016

Citation: 2016 HRTO 501

Indexed as: Diesel v. Aramark Canada Ltd.

1This Interim Decision addresses the request of the personal respondents, Meric Gertler, Rohini Singal and Joshua Barker, to be removed as parties to this Application and the request of the applicant to add the University of Toronto and Starbucks Coffee Canada Inc. (“Starbucks”) as parties to the Application.

2This Application alleges discrimination with respect to employment because of sexual orientation and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3Rule 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.

4The 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 factor may be helpful in assessing whether a personal respondent should be removed:

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

2. Is there any issued 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.

5In view of the fact that there are no allegations of discrimination in the Application against Meric Gertler, Joshua Barker or Rohini Singal, I see no reason why they should continue to be named as individual respondents. The request to remove them as individual respondents is granted.

6The request to add the University of Toronto and Starbucks as parties is denied. With respect to Starbucks, the Applicant has not made any allegations which would support a finding against it. There is no basis upon which Starbucks can be found to have violated the Applicant’s rights pursuant to the Code.

7With respect to the University of Toronto, all of the allegations in the Application pertain to interactions between the Applicant and his employer, the respondent Aramark Canada Ltd. and its representatives. There are no facts alleged in the Application from which a finding could be made that the University of Toronto discriminated against the Applicant in the course of his employment with Aramark Canada Ltd.

8The request to remove the personal respondents, Meric Gertler, Rohini Singal and Joshua Barker is granted and the style of cause is amended accordingly.

9The applicant’s request to add the University of Toronto and Starbucks as respondents is denied.

10I am not seized of this matter.