Louie Mavec v. Sanofi Pasteur Limited, 2009 HRTO 2246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louie Mavec

Applicant

• and-

Sanofi Pasteur Limited

Respondent

A N D B E T W E E N:

Louie Mavec

Applicant

• and-

Communications, Energy and Paperworkers Union of Canada, Local 1701 and Rob Gardner

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: December 22, 2009

Citation: 2009 HRTO 2246

Indexed as: Mavec v. Sanofi Pasteur

1These are two Applications filed with the Tribunal pursuant to s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with a request filed and delivered on October 30, 2009, by the individual respondents in TR-0096-09, Kathy Heard, Tina Clinton, Mark Leivonen and Wayne Pisano, that they be removed as respondents.

2As noted in a Case Assessment Direction issued November 26, 2009, in the human rights complaint forming the subject matter of Application TR-0096-09 (the “Employer Application”) the named respondents were Jean Francois Dehecq, Wayne Pisano, Julia O’Rawe, Tina Clinton and Kathy Heard. The applicant identified respondents Tina Clinton, Kathy Heard, Wayne Pisano and purported to add Mark Leivonen when he abandoned his complaint and made this Application. By letters dated April 22 and 28, 2009, the Tribunal advised that the respondent parties in this Application were those named in the human rights complaint who were then identified in the Application Form TR-1. Accordingly, the personal respondents in the Employer Application are Tina Clinton, Kathy Heard and Wayne Pisano.

3In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

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.

4The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 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 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.

5Although afforded an opportunity to do so, the applicant made no submissions in response to the respondents’ request. I have considered the requests in light of the allegations made in the complaint forming the subject matter of this Application and the considerations outlined in earlier decisions of the Tribunal cited above and am satisfied that it would be most just, fair and expeditious that these respondents be removed from the Application. There is no issue of the potential liability of the corporate respondents for the actions of these individual respondents which, to the extent that they are even mentioned in the complaint, appear to be in the normal course of their respective duties following the usual practices and policies established by their employer. It is equally clear that there will be no prejudice to the applicant or any other party if these individuals are removed as respondents.

6For these reasons the individual respondents previously identified in the Employer Application are removed and the style of cause amended accordingly.