Malabre v. LMC Endocrinology Centres (Toronto) Ltd., 2011 HRTO 1183

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Malabre

Applicant

-and-

LMC Endocrinology Centres (Toronto) Ltd., Ronnie Aronson and Ericka Ho-Sang

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: June 20, 2011

Citation: 2011 HRTO 1183

Indexed as: Malabre v. LMC Endocrinology Centres (Toronto) Ltd.

1The applicant in this Application, filed under s. s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), alleges that the respondents discriminated against her on the basis of disability and family status with respect of employment. Specifically, the applicant alleges that “management” at the corporate respondent refused to accommodate her disability-related needs at work following a November 2008 motor vehicle accident, and that the corporate respondent terminated her employment on January 29, 2009, because of her disability and her requests for accommodation to attend to her family responsibilities.

Request to remove personal respondent

2On May 26, 2011, a named personal respondent to the Application and the former Director of Human Resources with the corporate respondent, Lisa Fryer, filed a Request for Order during Proceedings that she be removed as a party to the Application.

3The corporate respondent and the personal respondent Ronnie Aronson, Executive Director of the corporate respondent, consent to Ms Fryer’s request. Neither the applicant nor the personal respondent Ericka Ho-Sang filed a response to the Request and the time for doing so has now passed.

4Ms Fryer’s request to be removed as a personal respondent is to be determined in accordance with the oft-cited principles enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31. In that decision, at paras. 4-5, the Tribunal reiterates its concern about the “unnecessary naming of personal respondents” and offers a framework for determining whether there is a compelling reason to continue the proceeding as against the personal respondent:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

5In this case, there is no issue with respect to the deemed liability of the corporate respondent for the conduct of Ms Fryer, nor has the applicant raised any issue with respect to the corporate respondent’s ability to respond to or remedy the alleged Code infringement. There is no compelling reason on the face of the Application for having the Application continue against Ms Fryer personally, as Ms Fryer’s interactions with the applicant appear to have arisen out of her duties as the Director of Human Resources with the corporate respondent. The applicant has not identified any prejudice that might result from removing Ms Fryer as a respondent to the proceeding. Accordingly, Ms Fryer is removed as a party to this proceeding and the style of cause is amended accordingly.

6I am not seized.