HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linus King
Applicant
-and-
Atlantic Packaging Products Ltd. and Sean Crosbie
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: King v. Atlantic Packaging Products Ltd
WRITTEN SUBMISSIONS
Linus King, Applicant
Self-represented
Atlantic Packaging Products Ltd., Respondent
Sonia Regenbogen, Counsel
Introduction
1This Application alleges contravention of Minutes of Settlement executed on September 21, 2016, with respect to an Application alleging that the respondents had violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondent breached paragraph 3 of the Minutes of Settlement.
2There were several provisions in the Minutes of Settlement, including provisions at paragraph 2 which related to an employment reference, paragraph 3 which related to the applicant’s Record of Employment and the employer’s dealings with “Service Canada” regarding the applicant, and paragraph 6 which contained confidentiality provisions.
3The Tribunal held a telephone conference hearing in this matter. At that time, the question of whether a personal respondent, Sean Crosbie, should be removed as a party to this Application, was addressed. The Minutes of Settlement were signed by the applicant on his own behalf and by Sean Crosbie on behalf of Atlantic Packaging Products Ltd.
4The parties also began to address the merits of the Application, namely, whether the respondent had breached paragraph 3 of the Minutes of Settlement executed on September 21, 2016. It became evident in the course of the hearing, however, that the applicant was seeking to rely upon documents he had not provided to the respondent or to the Tribunal. The merits portion of the hearing was adjourned, giving the unrepresented applicant the opportunity to provide the required disclosure.
5The Tribunal issued a Case Assessment Direction (CAD) on July 10, 2017, directing that the parties provide to the other parties and file with the Tribunal any documents upon which they intend to rely, within 14 days of the CAD.
6The applicant filed a Request for Order During Proceedings (“RFOP”) on July 23, 2017, seeking to amend his Application. He sought to add an allegation that the respondent failed to meet its obligations under paragraph 2 of the Minutes of Settlement as it did not provide oral confirmation of his employment when contacted by a potential employer, which he alleges disqualified him from the position. He has provided an undated letter from an individual who states that the applicant “did not meet all the requirements” to be offered a position and states “In addition, for your information, we could not obtain a reference from your previous employer”. The applicant also sought to add further details of the respondent’s interaction with “Service Canada”, which he alleges were in violation of the Minutes of Settlement, and provides documentation he received from “Service Canada” following his Freedom of Information request. Finally, he sought to add an allegation that the respondent had not maintained the confidentiality required in paragraph 6 of the Minutes of Settlement, and had provided information to “additional employees who did not required [sic] details to implement the terms of settlement. In his RFOP, he states that he seeks these amendments because he “acquired new information and evidence that will support my allegations”.
7On July 28, 2017, the respondent wrote to the applicant, requesting documentation and further information from him. On August 8, 2017, the applicant wrote to the respondent, refusing to provide the documentation or information sought and taking the position that they have “no relevance” to this Application.
8The respondent provided its Response to the RFOP on August 10, 2017. It took the position that the applicant could include further information regarding why he says the respondent contravened the Minutes of Settlement and provided its response to the new allegations, denying them and submitting that the Application should be dismissed.
9On August 11, 2017, the respondents filed a Request for Order During Proceedings, in which it sought deferral of the matter, pending the result of any appeal the applicant may have made regarding the decision about his E.I. benefits.
10The applicant did not respond to this RFOP and the time for doing so has now lapsed.
11On August 18, the Tribunal issued a Notice of Hearing, indicating that a half-day continuation of the telephone hearing was scheduled for October 13, 2017.
12On August 31, 2017, the respondent filed a further RFOP seeking an order that the applicant provide the documentation and information it had sought in its letter to him of July 28, 2017.
13The applicant did not respond to this RFOP and the time for doing so has now lapsed.
14On September 27, 2017, the respondent filed an RFOP in which it sought to convert the October 13, 2107 hearing to an “in-person” hearing, as it indicated that matters of credibility would be before the Tribunal for determination.
15The applicant sent an email to the Tribunal on October 4, 2017, by way of response to the respondent’s September 27, 2017. He objects to an adjournment of the October 13, 2017 teleconference hearing, and states that the respondent has had his disclosure since July 10, 2017.
Request to Remove Personal Respondent
16Rule 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 (Sigrist and Carson) 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.
17The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (Persaud) 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?
18In 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 Application.
19In all the circumstances, I find that it is appropriate to remove the personal respondent as a party to this Application. While Sean Crosbie signed the Minutes of Settlement on behalf of the corporate respondent, the applicant has made no particularized allegations regarding Sean Crosbie, and I do not find that 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 Application. The respondents’ request to remove Sean Crosbie as a personal respondent to the Application is granted. The style of cause will be amended accordingly.
Request to Amend
20In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
21Having considered the factors set out above, I grant the applicant’s request to amend the Application, in part. I find it is appropriate to grant the applicant’s request to add further particulars regarding how he alleges that the respondent breached its obligations pursuant to paragraph 3 of the Minutes of Settlement. I find that this is in the nature of providing particulars regarding how he alleges that the respondent did not live up to its obligations to him in its dealings with “Service Canada”.
22I do not find that it is appropriate, at this advanced stage of the hearing process, to permit the applicant to amend his Application so as to add allegations regarding breaches of paragraphs 2 and 6. Though the applicant asserts in his Form 10 that he “acquired new information and evidence that will support [his] allegations, there is no indication that these allegations stem from information he did not have prior to the commencement of the hearing. In fact, the disclosure he has provided indicates that he had the information regarding the alleged breach of paragraph 6 at least as early as May 5, 2017, from Employment and Social Development Canada, pursuant to his Freedom of Information request. The allegation that the respondent breached paragraph 2 and that it did not provide an oral reference for him, relates to the undated letter referenced above, about which the applicant has provided no further information. Prior to the applicant’s request to amend his Application, there has been a half-day telephone hearing and the Tribunal has issued several CADs, including a CAD ordering disclosure of documents referenced by the applicant in the half-day hearing. The applicant’s original failure to provide the documents he intends to rely upon at the hearing has already caused delay in this matter and this Application is too far advanced in the hearing process to add these allegations. Accordingly, the request to amend the Application to add allegations that the respondent breached paragraphs 2 and 6 of the Minutes of Settlement, is denied.
Request to Defer
23The respondent requests deferral on the basis that there may be an outstanding appeal of a decision regarding E.I. benefits. The applicant has provided no information regarding this. Prior to a decision regarding this issue, the Tribunal will provide the parties with the opportunity to furnish further information and submissions.
Request for Documents and Information
24The respondents request documents and information which they submit is relevant to this matter. The applicant states simply that it is “not relevant”. Prior to a decision regarding this issue, the Tribunal will provide the parties with the opportunity to furnish further information and submissions.
Request for an In-Person Hearing
25It is evident from the nature of the now-amended Application that issues of credibility will be before the Tribunal for determination. Further, it is evident from the additional allegations, that half a day will not suffice for the presentation of evidence and submissions.
26The currently scheduled half-day telephone conference will proceed. It will be used to address the outstanding issues noted above, namely, the question of deferral, and the request for documents and information.
27The respondent’s request for an in-person hearing regarding the merits of this Application is granted. Further, as one half-day is likely insufficient for the presentation of evidence and arguments regarding this Application, subject to the Tribunal’s determination regarding deferral, the Registrar will schedule a further full hearing day, in-person.
ORDER
28The Tribunal orders as follows:
i) The applicant’s request to amend the Application so as to include further particulars regarding his allegation that the respondent breached paragraph 3 of the Minutes of Settlement, is granted;
ii) The applicant’s request to amend the Application so as to include allegations that the respondent breached paragraphs 2 and 6 of the Minutes of Settlement, is denied;
iii) The respondent’s requests for deferral, production of documents and further information, will be addressed at the telephone hearing date currently scheduled;
iv) The respondent’s request for an in-person hearing is granted for the hearing of the merits of this Application;
v) Subject to the Tribunal’s decision regarding deferral, the Registrar will schedule an in-person hearing day for the merits of this Application.
29I am not seized.
Dated at Toronto, this 11th day of October, 2017.
“Signed by”
Maureen Doyle
Vice-chair