HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carol Ingram
Applicant
-and-
Nicholby’s Convenience and Trisan Realty Corporation
Respondents
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Ingram v. Nicholby’s Convenience
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondents discriminated against her on the basis of disability, sex and age in respect of employment.
2In addition to the two organizations, the Application names Mark Parisien, a former employee of Trisan Realty Corporation and the applicant’s former supervisor, as a personal respondent.
3The personal respondent filed a Response in November, 2009 and then a Request for Order During Proceedings on January 22, 2010, seeking to be removed as a respondent in this matter. The organizational respondents and the applicant have not filed Form 11s in response to his Request and their deadline for so doing has long since passed.
4As all parties had agreed to mediation; on July 15, 2010, a Notice of Mediation was sent to all parties. The Notice acknowledged that there was an outstanding Form 10, Request for Order During Proceedings, filed by the individual respondent, Mark Parisien, and indicated that it would be addressed in the event that the matter did not result in a settlement on the mediation date.
5Following receipt of the Notice of Mediation, the personal respondent has contacted the Tribunal to renew his request to have a decision made on his Form 10. He has also confirmed that he will not be attending the mediation, and given reasons why his attendance would cause him hardship. In the circumstances, and in the exercise of my discretion under Rule 1.7(g) to determine the order in which issues in a proceeding will be considered and determined, I find it fair, just and expeditious to determine the Request for Order at this stage.
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 decisions of the Tribunal (see: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, (“Sigrist”) and Persaud v. Toronto District School Board, 2008 HRTO 31, (“Persaud”)).
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 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.
9The personal respondent has made lengthy submissions in support of his position that the factors outlined in Persaud argue for his removal as a party to these proceedings.
10On 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 respondent should be removed from this proceeding. There is no suggestion that he was acting outside the course of his employment and his former employer is separately named as a respondent. 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. I see no compelling reason to continue these proceedings against the personal respondent and the parties have not responded in any way to his Request to be removed.
11I therefore order that Mark Parisien be removed as a respondent and the title of proceedings be amended accordingly. The mediation in this matter will proceed as scheduled.
Dated at Toronto this 30th day of July , 2010.
”signed by”____________________
Jay Sengupta
Vice-chair```