Agar v. North York General Hospital, 2009 HRTO 1165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Beverly Agar

Applicant

-and-

North York General Hospital and Sandy Marangos-Frost

Respondents

AND B E T W E EN:

Beverly Agar

Applicant

-and-

Toronto District School Board, Dave Rowan, Larry Wood, Larry Chapin and Chuck Hay

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: July 29, 2009

Citation: 2009 HRTO 1165

Indexed As: Agar v. North York General Hospital

1These are two Applications filed June 16 and June 19,2009 respectively under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a Request for Order During Proceedings seeking the removal of three personal respondents named in the human rights complaint underlying the Applications. The applicant consents to the removal of two of the identified respondents and the style of cause has been amended accordingly. The Applicant objects to the removal of Sandy Marangos-Frost.

2The parties argued this issue based on the principles enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5:

Pursuant to Rule 14(b) of the Tribunal's Rules of Practice, the Tribunal has the power to "add or remove a party". In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal's discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 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.

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:

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 [is] 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?

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.

3The applicant does not dispute that there is a corporate respondent that does not dispute its liability for the alleged conduct of the individual respondent. However, the applicant states that the corporate respondent is not capable of providing an apology to the applicant, one of the remedies she is seeking. It is also stated that, as in Persaud, it is not appropriate to remove a respondent where the personal conduct of that person would be a central issue. The applicant contends that the conduct of Ms. Marangos-Frost is a central issue in this Application and that she was independently responsible for the respondent corporation's failure to accommodate the applicant.

4Although they are only allegations at this stage, the materials filed by the applicant suggest that the conduct of Ms. Marangos-Frost will be one of the central issues in the hearing. Moreover, whether or not an apology will be ordered, in the circumstances it is a remedy, if not uniquely available from an individual, has a different meaning coming from an individual as opposed to a corporate entity. If Ms. Marangos-Frost is removed as a respondent, the applicant will be deprived of the option of arguing for a remedy she is seeking.

5For these reasons I find there is a compelling reason to continue this Application against Ms. Marangos-Frost.

6I am not seized of these matters.