Teresa Glynn v. Lowes Companies Canada, ULC et al., 2009 HRTO 1778

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Teresa Glynn

Applicant

-and-

Lowes Companies Canada, ULC, Derek Coburn, John Mihalic, Allan Huggins and The Manufacturers Life Insurance Company

Respondents

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: October 27, 2009

Citation: 2009 HRTO 1778

Indexed as: Glynn v. Lowes Companies Canada

1On May 27, 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 disability, sex and sexual orientation. She also alleges that she was subject to reprisal. The respondents dispute the applicant’s allegations and deny they have discriminated against her.

2On August 12, 2009, the ten personal respondents and Lowes Companies Canada, ULC (the “Lowes respondents”) filed a Request for Order during Proceedings pursuant to Rule 19 of the Tribunal’s Rules of Procedure seeking a number of orders. Specifically, there is a request for the removal of seven of the ten personally named respondents, a request for an order striking certain sections of the Application that the Lowes respondents argue allege mistreatment that is unrelated to the Code and a request that the portion of the Application alleging gender discrimination be dismissed as the issues were not raised within a year, as required by the Code. This Interim Decision addresses portions of that request.

Removal of Personal Respondents

5The Application names ten personal respondents. There is a request by the Lowes respondents for an order removing seven of the personal respondents as parties to this Application. They argue that these respondents all continue to be employed by Lowes, there is no issue with respect to the ability of Lowes to respond to or remedy any alleged infringement, there would be no prejudice to any party as a result of removing them as parties and there is no allegation that their alleged conduct places them outside the scope of their employment.

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:

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.

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 Ben Mondello, Catherine Nash, Catherine Townsend, Don Stallings, Jaime Cooper, Laura Kramer and Michael Obnowlenmy be removed as respondents and the title of proceedings be amended accordingly.

11The remaining parties have indicated a willingness to attend mediation. Given the consent of the parties, the Tribunal will schedule mediation.

12The outstanding requests by the respondents to dismiss all or parts of the Application will be addressed by the Tribunal, if necessary, following mediation.

13I am not seized of this matter.