HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sui-Fun Chan
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Tai Pan Vacation
and Fion Tran
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Date: October 24, 2008
Citation: 2008 HRTO 191
Indexed as: Chan v. Tai Pan Vacation
Human Rights Tribunal of Ontario
655 Bay Street, 14th Floor
Toronto, ON M7A 2A3
Phone 416-314-8419 Fax 416- 314-8743 Toll Free 1-866-598-0322
TTY 416-314-2379 Toll Free1-800-424-1168
E-mail hrto.registrar-transition@ontario.ca
Website www.hrto.ca WRITTEN SUBMISSIONS BY
Ontario Human Rights Commission ) Bay Ryley, Counsel
Sui-Fun Chan, Complainant ) Avvy Yao-Yao Go, Counsel
Tai Pan Vacation Inc. )
and Fion Tran, Respondents ) Natalia Chang, Counsel
[1] This Interim Decision deals with whether there is a sufficient basis to continue this proceeding as against the personal respondent Fion Tran.
[2] In submissions dated October 2, 2008, the Ontario Human Rights Commission (the “Commission”) advised that it consents to an order that Ms. Tran be removed as a personal respondent, having been advised that she was acting in the course and scope of her employment with Tai Pan Vacation and that if she is found to have breached the Ontario Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”), Tai Pan Vacation will be liable for her actions.
[3] The respondent’s request is opposed by the complainant, on the basis that, contrary to the Commission’s view, there is no indication that Tai Pan Vacation will not contest its liability for the actions of Ms. Tran and that Tai Pan Vacation’s stated position with respect to the actions of Ms. Tran suggests that Tai Pan Vacation will not accept liability for her actions.
[4] Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In Persaud v. Toronto District School Board, [2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31), the Tribunal identified the following non-exhaustive list of factors that may be helpful in assessing whether a personal respondent should be removed:
whether there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct;
whether any issue is raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who is sought to be removed;
whether there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement;
whether any compelling reason exists 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; and
whether any prejudice would be caused to any party as a result of removing the personal respondent.
[5] In this case, there appears to be no issue as to the first and third factors. The primary issue raised by the complainant appears to be whether Tai Pan Vacation is raising any issue as to its liability for Ms. Tran’s actions.
[6] In the respondents’ submissions and in the affidavit sworn by her, Ms. Tran states that at all material times, she acted within the scope of her duties as an employed senior or executive manager of Tai Pan Vacation. These submissions further acknowledge that Tai Pan Vacation is vicariously liable for the actions of its employees, such as Ms. Tran, when acting on its behalf. It is correct, as noted by the complainant, that the respondents also assert that Ms. Tran had no role in the termination of the complainant’s employment. However, this is a matter to be determined at the hearing on the merits in this proceeding and does not derogate from the corporate respondent’s acknowledgement that if Ms. Tran is found to have been involved in the termination, she has acknowledged that she was acting within the scope of her duties as an employee and Tai Pan Vacation has acknowledged that it would be vicariously liable. As a result, I concur with the Commission that the second factor also has been satisfied.
[7] The complainant has not identified any compelling reason to continue this proceeding as against Ms. Tran. The only prejudice alleged by the complainant is premised on the notion that Tai Pan Vacation has not accepted that it is liable for Ms. Tran’s actions, which I have found not to be the case. It also is noteworthy that no specific remedy is sought personally as against Ms. Tran, other than that she be held jointly and severally liable for any damages awarded. As a result, I order that Ms. Tran be removed as a party to this proceeding.
ORDER
[8] The Tribunal makes the following Order:
a) that personal respondent Fion Tran be removed as a party to this proceeding.
Dated at Toronto, this 24th day of October, 2008.
“Signed by”
Mark Hart
Vice-Chair