David Lewis v. Sporting Life Inc., 2017 HRTO 1045

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lewis

Applicant

-and-

Sporting Life Inc.

Respondent

INTERIM DECISION

Adjudicator: Esi Codjoe Date: August 14, 2017 Citation: 2017 HRTO 1045 Indexed as: Lewis v. Sporting Life Inc.

WRITTEN SUBMISSIONS

David Lewis, Applicant

Sara J. Erskine, Counsel

Sporting Life Inc., Respondent

Lisa Cabel, Counsel

1The purpose of this Interim Decision is to address the respondents’ request to remove the personal respondents from the Application.

2The applicant filed an Application alleging discrimination because of age, ethnic origin and race contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). He alleges that the respondent would not promote him, and terminated his employment given his age, ethnic origin and race.

REQUEST TO REMOVE PERSONAL RESPONDENTS

3The respondents have requested the removal of Chris MacDonald, Ian Jacobson, and Nathalie Gref Pipenko, employees of the organizational respondent, as personal respondents to the Application.

4Pursuant to Rule 1.7(b) of the Tribunal’s Rules the Tribunal may add or remove a party. Further, the Tribunal has decided cases on whether it can remove personal respondents. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 (“Sigrist”) and Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), the Tribunal outlined the following factors that can be used to assess 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?

5The respondents submit that at all times the personal respondents were acting in their capacities as employees of the organizational respondent, and that the allegations do not relate to their actions in their personal capacity. The respondents also submit that the personal respondents were not acting outside of the scope of their employment. Further, the organizational respondent accepts vicarious liability for the personal respondents’ actions. In addition, they submit that the applicant has not identified any issue regarding the ability of the organizational respondent to comply with any order issued by the Tribunal. The applicant has not identified any specific prejudice he would suffer from the removal of the personal respondents from the application.

6The applicant submits that his Application pertains to the personal respondents’ conduct and that it is unclear what role they had in the hiring of employees and the termination of his employment. Further, he submits that the removal of the personal respondents would curtail his ability to have those individuals present evidence at hearing, and that their non-attendance would be prejudicial to his case. Lastly, he submits that the removal of the personal respondents from the Application would extinguish his ability to obtain educative remedies against each of them.

7Applying the criteria outlined in Sigrist and Persaud, it would be fair and just to grant the respondents’ request to remove Chris MacDonald, Ian Jacobson, and Nathalie Gref Pipenko as personal respondents. The Application makes reference to workplace decisions and incidents. Much of what is described relates to various employees’ work performance, including the applicant; their execution of those workplace decisions would have been within the scope of their work duties for the respondent. In addition, the organizational respondent has accepted vicarious liability for the personal respondents’ actions. As such, the applicant may seek remedies as against the organizational respondent for its employees’ acts and/or omissions.

8There is also no evidence of prejudice to the applicant were the personal respondents to be removed from the Application. If the applicant wishes to have the personal respondents attend the hearing, he is free to request that the Tribunal issue a summons to them to compel their attendance. Consequently, this would afford the applicant the ability to examine the witnesses and obtain any necessary evidence. Lastly, in the event that the Tribunal wishes to award educative remedies in this case, the lack of named personal respondents would not limit its ability to award such remedies in a manner that applies to the personal respondents.

9I have applied the factors in Sigrist and Persaud, and find that it is appropriate to remove Chris MacDonald, Ian Jacobson, and Nathalie Gref Pipenko as personal respondents.

orders

10For the above reasons, the Tribunal orders as follows: Chris MacDonald, Ian Jacobson, and Nathalie Gref Pipenko are removed personal respondents to the Application and the style of cause is amended accordingly.

11I am not seized of this matter.