Hildebrandt v. E.D. Smith, 2010 HRTO 1944

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerri Hildebrandt

Applicant

-and-

E.D. Smith Ltd. and Derya Kolcuoglu

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: September 23, 2010

Citation: 2010 HRTO 1944

Indexed as: Hildebrandt v. E.D. Smith

1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of sex, family status, marital status and record of offences. Her Application named both an organizational respondent, E.D. Smith Foods Ltd., and an individual respondent, Derya Kolcuoglu.

2This Interim Decision addresses the respondents’ Request for Order During Proceedings (Form 10) to remove the individual respondent. The respondents filed a Statement of Delivery (Form C) indicating that the Request for Order was served on the applicant by couriering the Request to her on July 9, 2010. While the respondents filed the wrong Statement of Delivery (Form Cs are used for transitional applications; the proper form in this instance would have been a Form 23), it would appear that the Request for Order was served on the applicant. The applicant has filed no response to the Request for Order.

3The respondents state that during the relevant period the individual respondent was “acting in the scope of her employment” and not in her individual capacity. The Application indicates that Ms. Kolcuoglu was the applicant’s supervisor, and that over the course of several months prior to the applicant’s maternity leave harassed the applicant concerning the time she had taken off work.

4In Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 4, the Tribunal reiterated its concern about the “unnecessary naming of personal respondents” and offered a framework for considering whether to remove personal respondents:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

5There is no issue with respect to the deemed liability of the corporate respondent for the conduct of Ms. Kolcuoglu, nor has the applicant raised any issue with respect to the corporate respondent’s ability to respond to or remedy the alleged infringement. However, it would appear from the Application that the conduct of Ms. Kolcuoglu is a central issue. Moreover, in light of nature of the allegations against her, it might be appropriate to award a remedy specifically against her in the event an infringement is found. It would not, therefore, be appropriate to remove the individual respondent at this stage.

6Accordingly, the respondents’ Request for Order is dismissed.

7I am not seized of this matter.