HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bi Ying Lam Applicant
-and-
Ontario Ombudsman Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta Date: September 15, 2009 Citation: 2009 HRTO 1473 Indexed as: Lam v. Ontario Ombudsman
1On June 10, 2009, the applicant filed an Application under Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of race, place of origin and ethnic origin. The respondents dispute the applicant’s allegations and deny they have discriminated against her.
2In their Response, the respondents sought to have the Application deferred pending the resolution of a grievance filed by the applicant’s union on her behalf and the removal of the personal respondents. This Interim Decision addresses those two requests.
Request to Defer
3In a previous Interim Decision, 2009 HRTO 1261, the Tribunal sought clarification from the parties and from the applicant’s union, Canadian Office & Professional Employees’ Union (“COPE”) Local 343, regarding the status of a grievance filed on her behalf.
4Submissions have been received from COPE and the parties. COPE has confirmed that they have withdrawn the matter from the arbitration process. As there are no longer any potentially concurrent proceedings, the request to defer is denied.
Removal of Personal Respondents
5The Application names three personal respondents, all of whom are employed in managerial roles at Ombudsman Ontario.
6The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent decisions of the Tribunal. (See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31)
7In Sigrist the Tribunal set out the general approach to this issue, stating as follows 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.
8In Persaud, the Tribunal expanded on these principles as follows, at para. 5:
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.
9On my review of the submissions and the material before me, including the allegations made by the applicant and relief requested, I am satisfied that the personal respondents should be removed from this proceeding. There is no suggestion that they were acting outside the course of their employment, their employer has assumed responsibility for their conduct and I see no prejudice to the applicant’s ability to proceed with the hearing of this matter and receive an adequate remedy if an infringement of the Code is established.
10I therefore order that Eva Kalisz, Mary Elizabeth Nugent and Sue Haslam be removed as respondents and the title of proceedings be amended accordingly.
11I am not seized of this matter.
Dated at Toronto, this 15th day of September, 2009.
“Signed by”
__________________________________
Jay Sengupta Vice-chair