Agar v. North York General Hospital, 2009 HRTO 1320

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 Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim Date: August 26, 2009 Citation: 2009 HRTO 1320 Indexed as: Agar v. North York General Hospital

Reasons for Decision

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 in TR-0237-09 (the "Toronto District School Board Application") seeking the removal of four personal respondents named in the human rights complaint underlying the Applications. The applicant consents to the removal of three of the identified respondents and the style of cause has been amended accordingly. The applicant objects to the removal of Larry Wood. This Interim Decision also deals with the respondents' request for dismissal or deferral of the Application TR-0237-09.

Removal of Personal Respondent

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. She submitted that, as in Persaud, it is not appropriate to remove a respondent where the individual conduct of that person would be a central issue. The applicant contends that the conduct of Mr. Wood is a central issue in this Application and that he was independently responsible for the respondent corporation's failure to accommodate the applicant.

4In a related Interim Decision, 2009 HRTO 1165, the Tribunal declined to remove a personal respondent whose actions were the central issue in the hearing, and where the applicant sought an apology from the personal respondent as a remedy. The applicant has not raised a similar argument here with respect to the necessity to retain Mr. Wood to pursue a remedy against him. In these circumstances, I do not see a compelling reason to continue this Application against Mr. Larry Wood and he is removed as a personal respondent. The style of cause is amended accordingly.

Dismissal or Deferral

5The respondents also requested that the Application be dismissed under section 45.1 on the basis that the applicant raised the same allegations in a grievance.

6The applicant's union filed two grievances on the applicant's behalf. The first grievance, filed in 2004, relates to the same facts as alleged in TR-0237-09. This grievance was subsequently withdrawn by the union. The fact that the applicant could have had her concerns dealt with by through the Application process does not attract the application of section 45.1: Maurer v Metroland Media Group, 2009 HRTO 200, at paragraph 12.

7The respondents also sought a deferral of the Application on the basis of an ongoing arbitration proceeding. The applicant's union filed a second grievance relating to an alleged failure to accommodate the applicant by placing her in a suitable teaching position in 2006. That grievance is at arbitration. The Arbitration Board has clearly stated that it will not be inquiring into the facts surrounding the events of 2004 raised in Application TR-0237-09. Further, the applicant has specifically restricted her Application to the facts and circumstances which occurred prior to August 2004.

8Having reviewed the two grievances, I find that they are not significantly inter-related and I see no basis to defer the present Application in light of an arbitration proceeding into an alleged failure to accommodate in 2006.