Khan v. Mount Dennis Medical Group, 2010 HRTO 2482

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sofina Khan

Applicant

-and-

Mount Dennis Medical Group and Karen Simpson

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: December 14, 2010

Citation: 2010 HRTO 2482

Indexed as: Khan v. Mount Dennis Medical Group

1This is an Application filed on January 28, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application named only the personal respondent Karen Simpson. By Case Assessment Direction dated November 26, 2010, the Tribunal indicated that it proposed to add Mount Dennis Medical Group (“MDMG”) as a respondent and requested written submissions from MDMG on whether it is a proper respondent to the Application. MDMG filed written submissions objecting to being added as a respondent.

3On my review of the material before, including the written submissions of MDMG, I find that it is appropriate to add MDMG as a respondent to the Application.

4In this matter, the applicant alleges that she experienced discrimination in employment on the ground of disability. She states that she was employed as a medical administrative assistant at a medical clinic. She alleges that her employment was terminated at least in part because of a perceived mental illness. Her Application names her former manager as a respondent, but does not name the medical clinic, MDMG.

5The personal respondent filed a Response. Although the Response form asks whether there is another person or organization that should be named as a respondent, the personal respondent did not complete this section. However, she did subsequently send correspondence to the Tribunal clearly indicating that she believes MDMG should participate in this proceeding. Among other things, she states that her own employment has been terminated and she believes that this Application against her is a factor in her dismissal. In her letter, she states that “I was paid by Mount Dennis to discharge my responsibilities in the Clinic’s best interests in all areas which I did for four years. I do not understand how my employer could abdicate from any involvement in this matter.”

6MDMG does not dispute that the personal respondent was its Clinic Manager at the time of these events. It states that it should not be added as a respondent because the personal respondent made a unilateral decision without authority to terminate the applicant’s employment. It states that this was one of several causes of concern it had about the personal respondent’s work performance, leading to her dismissal. MDMG states that the personal respondent was clearly not acting within the scope of her duties when she terminated the applicant’s employment.

DECISION

7In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal reviewed its approach in determining a request to add a respondent, stating that the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

8The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the factors in Persaud v. Toronto District School Board, 2008 HRTO 31, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

9In this case, it is not apparent that the applicant wishes to seek any remedies against MDMG. However, it is also apparent that the personal respondent believes that she was acting in the course of her duties in taking the actions that are at the heart of this Application. Section 46.3 of the Code establishes that a corporation or unincorporated association is responsible for actions done by employees in the course of their employment. While MDMG may wish to dispute whether the actions of the personal respondent were done in the course of her employment, I am satisfied that it is at least arguable that MDMG is responsible for her actions and may thus be found liable for any contravention of the Code. Even if the applicant does not intend to seek a remedy against MDMG, it is open to the personal respondent to argue that liability, if any, should be shared or assumed by MDMG instead of her.

10In these circumstances, I am satisfied that the first question favours adding MDMG as a respondent. The second question is not applicable since it is not an individual. I find no unfairness or other factor that weighs against adding MDMG as a respondent.

11MDMG is added as a respondent and the style of cause amended accordingly. MDMG will be sent a copy of the Application with this Interim Decision and must file a Response within 30 days of today’s date.

12I am not seized of this matter.