Talbot v. Kronis, Rotzstain, Margles, Cappel, 2010 HRTO 589

Human Rights Tribunal of Ontario

B E T W E E N:

Terry Talbot Applicant

-and-

Kronis, Rotzstain, Margles, Cappel Respondent

INTERIM DECISION

Adjudicator: David Muir Date: March 18, 2010 Citation: 2010 HRTO 589 Indexed as: Talbot v. Kronis, Rotzstain, Margles, Cappel

1This is an application filed March 20, 2009 pursuant to section 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a Request for Order During Proceedings filed by the respondents seeking the removal of individual respondents. Although given an opportunity to respond, the applicant has chosen not to provide any reply submissions.

2Pursuant to Rule 4.3(b) of the Tribunal's Rules of Procedure for Transitional Applications under section 53(3) and 53(5) of the Code, the Tribunal has the power to "add or remove a party". In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal identified the following non-exhaustive list of factors that may be helpful in assessing whether a personal respondent should be removed:

1. whether there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct;

2. whether any issue is 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. whether there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement;

4. whether any compelling reason exists 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; and

5. whether any prejudice would be caused to any party as a result of removing the personal respondent.

3In this case, there appears to be no issue with respect to any of the factors listed above. The allegations in the complaint underlying the Application relate to whether or not the respondent employer discriminated against the applicant and/or failed to accommodate her disability. The corporate respondent in this case, a law firm was the applicant's employer and it is the conduct of the partnership that is alleged to have violated the Code, not the conduct of the individual named respondents. It is the partnership that would have been responsible to provide appropriate accommodation for the applicant, not the individual partners. In any event, there are really no allegations made concerning the individuals named. In light of the issues raised, it is the partnership that would be called upon for the remedy should liability be established. There is no apparent prejudice to any party should the individuals be removed and otherwise no compelling reason that the Application be continued as against them.

ORDER

4The Tribunal makes the following Order:

a) that the personal respondents, Bruce Cappel and Andrea Margles be removed as parties to this Application and the style of cause amended accordingly.