Human Rights Tribunal of Ontario
B E T W E E N:
Robert Hinze
Applicant
-and-
Great Blue Heron Charity Casino
Respondent
INTERIM DECISION
Adjudicator: Kaye Joachim
Date: August 26, 2009
Citation: 2009 HRTO 1322
Indexed as: Hinze v. Great Blue Heron Charity Casino
[1] 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.
[2] The applicable principles for removing parties were enunciated in [Persaud v. Toronto District School Board, 2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31), at paras [4-5](https://www.minicounsel.ca/hrto/2008/31):
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.
[3] The applicant contends that Persaud should be understood to stand for the principle that persons who fail to properly investigate should remain respondents and only those who are purely “instruments within administration” should be removed. I decline to read Persaud so narrowly. The corporate respondent has accepted that it is liable for any of the conduct of its employees that may be found to violate the Code and there is no issue as the corporate respondent’s ability to provide a remedy. In these circumstances, I do not see a compelling reason to continue this Application against Cheryl Givelas, Vince Balfour or John Simerson and they are removed as personal respondents. The style of cause is amended.
Dated at Toronto, this 26^th^ day of August, 2009.
“Signed by”
Kaye Joachim
Alternate Chair