Crispo v. UAP, 2010 HRTO 40

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Crispo

Applicant

-and-

UAP Inc.

Respondent

interim decision

Adjudicator: Faisal Bhabha

Date: January 11, 2010

Citation: 2010 HRTO 40

Indexed as: Crispo v. UAP

1This is an Application that was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on April 14, 2009.

2The hearing is scheduled for January 25-27, 2010. Pursuant to Rules 16 and 17, the parties’ were required to file documents on which they intend to rely and summaries of their witnesses’ anticipated evidence by December 11, 2009. The respondents filed their pre-hearing disclosure on December 7, 2009. The applicant filed her disclosure on January 8, 2010.

3There remains an outstanding Request for Order During Proceedings (Form 10), filed by the respondents on October 27, 2009. They seek an order removing the individually named respondents from the proceedings. The applicant has had more than two months to file submissions responding to the Request but has failed to do so. I find that she has had an opportunity to be heard on this issue and will consider the Request solely on the basis of the materials filed.

REMOVAL OF PERSONAL RESPONDENTS

4The respondents request an order removing the respondents Martin Szydlowski, Dave Meagher, Paul O’Brien and Gary Yake from the proceedings. They submit that the individually named respondents were improperly made parties to the Application on the ground that there are insufficient allegations to continue the proceeding against them personally.

5The respondents argue that, at all material times, each of the personal respondents acted within the scope of their duties as employees of the corporate respondent. The corporate respondent concedes that should the Tribunal make a finding that the Code was breached the company is vicariously liable for the actions of its employees acting in the course of their duties. They submit that, absent a compelling juridical reason, personal respondents should not be named in an Application.

DECISION

6Section 46.3(1) of the Code provides that employers are vicariously liable for the actions of their employees. However, the fact that a corporate respondent may also be liable for the conduct of an employee is not a basis upon which to insulate that employee from personal liability for her or his own conduct that violates the Code.

7Pursuant to Rule 14(b) of the Rules, the Tribunal has the power to add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal elucidated some factors to consider when considering a request to remove a personal respondent:

1. Is there is 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 is 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?

8Based on my review of the Application and the respondents’ submissions, it is clear that the first three factors favour removing the personal respondents in the instant case. With respect to the criteria under the latter two factors, in the absence of submissions from the applicant, it does not appear on the face of the materials reviewed that there is any compelling reason to continue the proceeding as against any of the personal respondents. The Application does not contain allegations that, if proven, would be likely to give rise to a finding of personal liability against any of the individually-named respondents.

9Furthermore, the applicant has not argued that she or anyone else would be prejudiced by the removal of any personal respondent. The applicant will have the opportunity to continue with the hearing of her case on the scheduled dates. None of the allegations in her Application will be affected by this Interim Decision, and, if successful, she will be able to secure a remedy as against the corporate respondent, which has conceded its vicarious liability for the actions of its employees.

ORDER

10The Tribunal orders the personal respondents, Martin Szydlowski, Dave Meagher, Paul O’Brien and Gary Yake, be removed as parties to this proceeding and the style of cause is amended accordingly.