Macdonald v. Toronto District School Board, 2010 HRTO 402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruce Macdonald Applicant

-and-

Toronto District School Board Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta Date: February 22, 2010 Citation: 2010 HRTO 402 Indexed as: Macdonald v. Toronto District School Board

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 him on the basis of disability and engaged in reprisals in respect of employment during the period from 2004 through 2008. Among other things, the applicant asserts that he experienced discrimination in scheduling, discipline, comments, and in being denied necessary accommodations in the workplace.

2The Application names a number of personal respondents as well as the Toronto District School Board (the “TDSB”). The respondents have requested that the personal respondents, Gerry Connelly, Penny Mustin, Jean Shaw, Ian Allison, Andrea Alimi and Peter Chang, all of whom are employed by the TPSB, be removed as parties.

3The applicant has made submissions opposing the request to remove the parties.

4The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent decisions of the Tribunal. (See: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31).

5In 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.

6In 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:

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 [is] 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?

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.

7The applicant has made lengthy submissions suggesting that a compelling reason exists to continue the proceedings as against the personal respondents and that their alleged conduct might attract the granting of a remedy specifically against them. He also argues that he and others similarly situated would suffer prejudice if the personal respondents were removed as parties.

8On 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 respondents should be removed from this proceeding. There is no suggestion that they were acting outside the course of their employment and their employer is separately named as a respondent. While the applicant has made general assertions that the conduct of the personal respondents would attract remedies specific to them and that he would be prejudiced were they to be removed, he has not provided specifics. 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.

9I therefore order that Gerry Connelly, Penny Mustin, Jean Shaw, Ian Allison, Andrea Alimi and Peter Chang be removed as respondents and the title of proceedings be amended accordingly.