Magnoli v. First Choice Canada, 2010 HRTO 2181

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita Magnoli

Applicant

-and-

First Choice Canada Inc. o/a Signature Vacations

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: November 1, 2010

Citation: 2010 HRTO 2181

Indexed as: Magnoli v. First Choice Canada

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), raises allegations that the respondents discriminated against the applicant on the basis of marital status in the context of employment. The Application also alleged reprisal or threat of reprisal.

2In essence, the applicant alleges that some of the personal respondents commented to the applicant about a boyfriend and said that she should have sexual relations. When the applicant raised concerns about these comments, she said her work environment became poisoned and she was eventually dismissed.

3The respondents deny the allegations of discrimination and seek the early dismissal of the Application on the basis that it does not establish a prima facie case. They also seek an order removing the personal respondents.

4The applicant objects to the requested orders.

REQUEST TO DISMISS BECAUSE NO PRIMA FACIE CASE

5The respondents argue that the allegations, even if believed, would not support a finding of discrimination on the basis of marital status. According to the respondents, based on the Tribunal’s jurisprudence, comments such as those alleged could not form the basis of a finding of discrimination.

6Section 43(2) of the Code provides that, where an application is within the Tribunal’s jurisdiction, the Tribunal must provide the parties with an opportunity to make oral submissions before making a final determination of the Application.

7Thus, in order to determine the respondents’ request to dismiss, the Tribunal would be required to offer the parties an opportunity to make oral submissions.

8I have considered whether an oral hearing on the issue of a prima facie case would be appropriate. In my view, particularly given the additional allegations of reprisal, it would be difficult to effectively determine the issue on a preliminary basis. Accordingly, I think the most fair, just and expeditious manner of addressing this matter is to schedule a hearing on the merits.

9The respondents’ request for dismissal is denied.

10This Interim Decision is without prejudice to the respondents’ ability to request the dismissal of the Application at the hearing because the applicant has not established a prima facie case.

REQUEST TO REMOVE INDIVIDUAL RESPONDENTS

11The Tribunal set out the general approach to this issue in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. The Tribunal wrote 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.

12In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

1Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2Is 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?

3Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4Does 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?

5Would any prejudice be caused to any party as a result of removing the personal respondent?

13The corporate respondent states that all of the personal respondents were acting wholly within the normal course of their employment. While the respondents deny the allegations of discrimination, the corporate respondent states that it will accept liability for the actions of the personal respondents should the Tribunal find in favour of the applicant.

14In my view, in light of the corporate respondent’s position, it is appropriate to remove all of the personal respondents in this matter. There is no apparent prejudice to the applicant if they are removed.

15I order that all of the personal respondents be removed. The style of cause is amended accordingly.

16I am not seized of this matter.