Mastroianni v. Fanshawe College of Applied Arts and Technology, 2017 HRTO 1319

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Claudio Mastroianni

Applicant

-and-

Fanshawe College of Applied Arts and Technology, Morneau Shepell Ltd., and Ron Valencia

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: October 5, 2017 Citation: 2017 HRTO 1319 Indexed as: Mastroianni v. Fanshawe College of Applied Arts and Technology

WRITTEN SUBMISSIONS

Claudio Mastroianni, Applicant Self-represented

Fanshawe College of Applied Arts and Technology, Scott Dart, and Jeff Low, Respondents David Foster, Counsel

1The purpose of this Interim Decision is to deal with a request to remove two individual respondents to the Application.

2On December 16, 2016, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against him with respect to employment because of his disability.

3On February 22, 2017, the organization respondent, Fanshawe College of Applied Arts and Technology, and the individual respondents, Scott Dart and Jeff Low, filed a joint Response, which denied the allegations of discrimination.

4On August 4, 2017, these respondents also filed a Request for an Order During Proceedings (“RFOP”) to remove Mr. Dart and Mr. Low as individual respondents to the Application.

5On September 1, 2017, the applicant filed a Response to the RFOP, which opposed removing Mr. Dart and Mr. Low as individual respondents to the Application.

6Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14, the Tribunal set out the general principles that apply to this issue at para. 42:

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.

7In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal further expanded on these principles 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:

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

b) 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?

c) Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d) 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?

e) 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.

8In my view, Mr. Dart and Mr. Low should be removed as individual respondents to the Application. There is an organization respondent (Fanshawe College of Applied Arts and Technology) in the proceeding that is alleged to be liable for the same alleged conduct as them, no issue has been raised as to the organization respondent’s deemed or vicarious liability for their alleged conduct, and there is no issue as to the ability of the organization respondent to respond to or remedy any infringements of Code.

9In addition, in his Response to the RFOP, the applicant did not identify any prejudice that would be caused to him as a result of removing Mr. Dart and Mr. Low as individual respondents to the Application.

10Furthermore, the applicant has not identified a compelling reason to continue the proceeding against Mr. Dart and Mr. Low. The allegations of discrimination against them in the Application relate to the processes and decisions with respect to his request for accommodation of his disability-related needs and his internal complaint of discrimination to the organization respondent. His Response to the RFOP stated that they should remain as individual respondents because they did not handle his case in a professional way, and should be held accountable for that, but this is not a sufficiently compelling reason to continue the proceeding against them.

11In the circumstances, I find that it is not necessary to involve Mr. Dart and Mr. Low as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

12Accordingly, the request to remove Mr. Dart and Mr. Low as individual respondents to the Application is granted. The title of proceeding is amended accordingly.

13I am not seized of this matter.