HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Corneliu (Cornel) Turcan
Applicant
-and-
Rollstamp Manufacturing and Tom Mitchell
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Turcan v. Rollstamp Manufacturing
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleges discrimination with respect to employment because of age.
2The respondents request:
a. that this Application be dismissed on a preliminary basis as having no reasonable prospect of success and/or
b. that certain allegations in the Application be dismissed because they are untimely; and
c. that the individual respondent be removed as a party.
3This Interim Decision addresses the respondents' requests and next steps.
no reasonable prospect of success
4The respondents requested that the applicant's claims be dismissed as having no reasonable prospect of success. This request is denied.
5Rule 19A(6) of the Tribunal's Rules of Procedure provides that where a Request for Summary Hearing is denied the Tribunal need not give reasons. In the circumstances of this case, I will simply note that the issues raised by the applicant and respondent may only be resolved after hearing evidence in a hearing on the merits. The Tribunal's summary hearing process is used to deal with those applications where the allegations may be legally insufficient to constitute a case to be answered. That is not the case here. Summary hearings do not involve the hearing of any evidence. In order to address the respondent's refutation of the applicant's version of the facts, a hearing on the merits must be held. Therefore, the respondents' request to dismiss and/or Request for Summary Hearing is denied.
preliminary hearing
6Having reviewed the file, the Human Rights Tribunal of Ontario (the "Tribunal") has decided to hold a preliminary hearing to determine whether this Application should be dismissed, in whole or in part, on the basis that it appears that some or all of the allegations may be untimely.
7In addition, the preliminary hearing will address the respondents' request to remove the individual respondent.
8The preliminary hearing will be scheduled for a half-day hearing by conference call. This Case Assessment Direction contains important directions for the parties about the issues above that will be determined at the preliminary hearing.
REMOVAL OF INDIVIDUAL RESPONDENT
9Rule 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.
10The 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:
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.
11The parties may make submissions on whether the individual respondent should be removed for these reasons.
Are Allegations Untimely (delay)?
12It appears that some of the allegations may be untimely. Section 34 (1) and (2) of the Code read as follows:
(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
13The parties may make submissions on whether the Application is outside the Tribunal's jurisdiction for this reason. If the parties wish to rely on any evidence, witnesses or case law with respect to this issue they must deliver any additional documents, witness lists or case law they wish the Tribunal to consider to each other and file them with the Tribunal no later than 35 days after the date of this interim decision. If any party intends to call witnesses for this portion of the hearing, a summary of the witness' intended evidence must also be filed and delivered.
Next Steps AND DIRECTIONS
14The Registrar will schedule a half-day hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the preliminary hearing. Although scheduled for a half-day, not all preliminary hearings require a half-day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.
15If the Tribunal determines that all or a part of the Application should be dismissed for delay, it will be dismissed and the parties will receive a decision containing the reasons for the dismissal.
16The parties shall deliver to each other and file with the Tribunal copies of any further documents, witness lists or cases they intend to rely upon for this portion of the hearing no later than 35 days after the date of this letter. If any party intends to call witnesses for this portion of the hearing, a summary of the witness' intended evidence must also be filed and delivered.
order
17The respondents' request to dismiss this Application as having no reasonable prospect of success is denied.
Dated at Toronto, this 14th day of June, 2016.
"Signed by"
Dawn J. Kershaw
Vice-chair