Serova v. Ontario Ironworkers/Rodmen Benefit Plan Administrators Corporation, 2009 HRTO 2288

Human Rights Tribunal of Ontario

B E T W E E N:

Galina Serova Applicant

-and-

Ontario Ironworkers/Rodmen Benefit Plan Administrators Corporation Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 15, 2009 Citation: 2009 HRTO 2288 Indexed as: Serova v. Ontario Ironworkers/Rodmen Benefit Plan Administrators

1The applicant filed an Application with the Tribunal on September 9, 2009 alleging the organizational respondent and two individual respondents discriminated and reprised against her in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2On November 18, 2009, the respondents filed their Response and also filed a Request for Order During Proceedings on behalf of the two named individual respondents seeking that the Tribunal remove the individual respondents from the Application. The respondents’ Request for Order During Proceedings was delivered to the applicant on the same day.

3By way of letter dated November 25, 2009, the Tribunal provided the applicant with copies of the respondents’ Response. The Tribunal invited the applicant to file a Reply on or before December 9, 2009.

4On November 25, 2009, the applicant faxed the Tribunal and the respondents correspondence in which she advised that she chose not to respond to the Request for Order During Proceedings. The applicant also did not file a Reply.

REQUEST TO REMOVE PERSONAL RESPONDENTS

5Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of “non-exhaustive” factors in considering whether a personal respondent should be removed:

1. Is there 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 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?

6The respondents submit that the Tribunal should remove the individual respondents as parties to this matter because any allegations made against the individual respondents relate to when they were acting within their employment capacity for the organizational respondent and there is no issue with respect to the organizational respondent’s deemed or vicarious liability in that regard. The respondents further argue that there is no assertion that any individual respondent’s personal conduct, independent from the organizational respondent, is in dispute. The respondents submit that there is no compelling reason to continue the proceeding against the individual respondents and that no prejudice would be caused to the applicant’s ability to have a full hearing of her concerns.

7Based on a review of the Application, Response and submissions, I am satisfied that the individual 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.

8I therefore order that individual respondents be removed as respondents from this Application and the style of cause be amended accordingly. As the applicant and the organizational respondent have agreed to mediation, the Registrar will schedule a mediation date for this matter.

9I am not seized of this matter.