HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Eaton
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Eaton v. Ontario (Community Safety and Correctional Services)
WRITTEN SUBMISSIONS
David Eaton, Applicant
No one appearing
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community Safety and Correctional Services and Sean Stastny, Respondent
Tina Earl, Counsel
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to goods, services and facilities because of disability.
2In a previous Interim Decision, 2016 HRTO 316, the Tribunal denied the applicant’s request for an interim remedy. This Interim Decision addresses the respondents’ Request for an Order During Proceedings seeking removal of the individual respondent, filed on April 8, 2016. The applicant did not file a response to the request and the deadline for doing so has passed.
3The individual respondent, Sean Stastny, is a Probation and Parole Officer (“PPO”) employed by the respondent Ministry. The respondents submitted that the individual respondent was acting in the regular course of his duties with the organizational respondent. The respondents submitted that the organizational respondent is vicariously liable for the individual respondent’s conduct and that the organizational respondent is in the best position to remedy any breach of the Code. The respondents submitted that there is no compelling reason to continue the Application as against the individual respondent and that the applicant will suffer no prejudice if the individual respondent is removed.
Analysis and Decision
4Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed, as follows, at paragraph 5:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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 my view, it is appropriate to remove the individual respondent from this Application. The organizational respondent is vicariously liable for the individual respondent’s conduct and no issue has been raised regarding the organizational respondent’s ability to remedy any Code breach. The applicant does not make any allegations regarding the individual respondent and, as a result, I find that there is no compelling reason to continue the proceeding against the individual respondent. The applicant has not identified any prejudice that would result if the individual respondent is removed from the Application.
Order
6The individual respondent is removed from the Application and the style of cause shall be amended accordingly.
7I am not seized.
Dated at Toronto, this 17th day of May, 2016.
“Signed By”
Douglas Sanderson
Vice-chair