HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Banigan
Applicant
-and-
Sheridan College Institute of Technology and Advanced Learning
Respondent
INTERIM DECISION
Adjudicator: David Muir
Date: August 11, 2009
Citation: 2009 HRTO 1239
Indexed as: Banigan v. Sheridan College Institute of Technology
[1] This is an Application filed June 12, 2009 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 an Order During Proceedings requesting the removal of the personal respondent Robert Turner.
[2] The applicant alleges a reprisal by Sheridan College Institute of Technology and Advanced Learning (the “College”) and its administrators. The applicant alleges that he has been subject to retaliation for having filed human rights complaints. It is not stated when those human rights complaints were made or filed. Based on the documents filed with the Application, it appears that this dispute has its genesis in the applicant’s employment and termination by the College in the early to mid 1980’s. Mr. Turner is the current President and Chief Executive Officer of the College. There are no allegations that Mr. Turner did or failed to do anything that would constitute a reprisal under the Code.
[3] The principles that Tribunal has considered when dealing with this issue have been set out in enunciated in Persaud v. Toronto District School Board 2008 HRTO 31:
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:
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 [is] 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?
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.
[4] The applicant states Mr. Turner is a proper respondent because he is responsible for the acts of all of his predecessors in the position of President of the College.
[5] Considering Persaud, I find that is necessary to the most just, fair and expeditious resolution of the merits of this Application to remove the respondent Turner from the Application. There are no allegations made against him personally. The College is liable for the acts of its unidentified administrators who are alleged to have reprised against the applicant and if there is liability, the College is in a position to remedy the violation. On the other hand, the participation of another party to the proceeding will add to the complexity of the proceeding leading to further delay in the resolution of the dispute between the parties which appear to have been ongoing for over 20 years.
[6] For all of these reasons, Robert Turner is removed as a respondent to this Application and the style of cause amended accordingly.
[7] I am not seized of these matters.
Dated at Toronto, this 11th day of August, 2009.
“Signed by”
David Muir
Vice-chair