Ligia Reyes v. Andrea Seepersaud and Fatena Akache, 2010 HRTO 933

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ligia Reyes

Applicant

-and-

Andrea Seepersaud and Fatena Akache

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: April 29, 2010

Citation: 2010 HRTO 933

Indexed as: Reyes v. Seepersaud

WRITTEN SUBMISSIONS BY

Ligia Reyes, Applicant ) No submissions

Andrea Seepersaud, Respondent ) Jordan Goldblatt, Counsel

Fatena Akache, Respondent ) No submissions

Decision

1This Application was filed June 30, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The institutional respondent, Intercultural Neighbourhood Social Services ("ICNSS") has closed, and the applicant has abandoned her Application against this entity.

3This Interim Decision deals with a Request for Order During Proceedings filed by the personal respondent, Andrea Seepersaud seeking to be removed from the proceeding.

4Prior to the closing of ICNSS in June 2009, Ms. Seepersaud was the Executive Director of the ICNSS and the applicant was a former employee of ICNSS. Ms. Seepersaud's counsel submitted that as Ms. Seepersaud was at all times acting in the course of her employment in her dealings with the applicant, there is no legal basis upon which Ms. Seepersaud can be named as a respondent. Counsel noted that section 46.3(1) of the Code deems any act done in the course of employment by an employee to be act of the employer.

5I have set out section 46.3(1) of the Code below:

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

6To the extent that the respondent Seepersaud relies upon section 46.3(1) for the assertion that an employee, officer, official or agent of a corporation cannot be held liable for a breach of the Code, she is in error.

7Section 9 of the Code provides that "no person shall infringe or do, directly or indirectly, anything that infringes a right" under the Code. It is a well established principle of human rights law that individual employees may be named as respondents and may be the subject of an order against them personally for breaching an individual's rights under the Code. The purpose of section 46.3 is to confirm the parallel statutory liability of corporations, trade unions, etc, for the actions of their employees, members, etc, not to replace it.

8Nonetheless, I agree with the decision in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5:

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.

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.

9The complaint filed with the Ontario Human Rights Commission on July 27, 2007 alleged that ICNSS and the personal respondents discriminated against the applicant with respect to employment on the basis of creed and to have taken steps in reprisal against her.

10In particular, the respondent Seepersaud, as Executive Director, is alleged to have permitted and/or fostered a hostile working environment against the applicant because of her creed. Thus, Ms. Seepersaud's conduct is a central issue in this proceeding. Further, there is no institutional employer in the proceeding available to respond to the allegations. I conclude that the above factors militate against the removal of the respondent Seepersaud at this time.

11I appreciate that the applicant's allegations have been vigorously denied by the respondents in the response filed with the Commission. However, it is not appropriate at this stage to assess the credibility of the allegations in determining the preliminary issue of whether to remove the respondent Seepersaud.

12The respondent Seepersaud is directed to file a Response (TR-2) within 15 days of the date of this Interim Decision, if she has not already done so.

13The Registrar-Transition will contact the parties to schedule a date for the hearing or mediation as appropriate, depending on whether the respondent Seepersaud indicates an interest in mediation.