HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Szabo

Applicant

-and-

York University and Lillie Lum

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: June 23, 2011

Citation: 2011 HRTO 1205

Indexed as: Szabo v. York University

WRITTEN SUBMISSIONS

Nanette Climans, Respondent ) Self-Represented

Background

1The applicant filed an Application on May 17, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination on the basis of place of origin, ethnic origin and disability, in the context of the provision of educational services.

2The applicant alleges, among other things, that the personal respondent Nanette Climans, a fellow student at York University, engaged in discriminatory behaviour towards her because of her ethnic origin.

3The institutional respondent filed a Response on September 8, 2011, in which it stated, “…neither of the personal respondents are proper parties to this application. Nanette Climans was a fellow student at the time and was not providing a service to the Applicant”.

4On April 26, 2011, the personal respondent Nanette Climans brought a Request for Order During Proceedings (Form 10) asking the Tribunal to remove her as personal respondent on the basis that, “I am a student and did not provide either employment services or accommodation to the applicant”.

5None of the parties filed a response to the Form 10.

Analysis and Decision

6Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, the Tribunal set out the general principles that apply to this issue:

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.

7The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, 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 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?

8The Application alleges that the institutional respondent as well as the two personal respondents are liable for the alleged Code infringement. Therefore I find that the first factor of the Persaud test is satisfied with regard to the removal of Nanette Climans as a respondent.

9I note that in its Response the institutional respondent states, “The ability to remedy the alleged Human Rights Code infringement rests solely with York University”. I understand this to mean that the institutional respondent is taking responsibility for any liability flowing from a breach of the Code suffered by the Applicant. There is no issue of the University’s ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. Thus the second and third elements of the test in Persaud are met in favour of the removal of Ms. Climans.

10In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching the question is to ask whether it is necessary to involve the person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint. It may be that the actions or decisions of the personal respondents are relevant to the issues in the Application, but this is true of many Applications in which responsibility ultimately rests with an organizational respondent. Decisions or actions taken by organizational respondents are necessarily effected through individuals. Although the allegations contained in the Application impugn the conduct of the individual respondents, there is nothing suggesting that Ms. Climans was personally responsible for the provision of any educational services to the applicant, see Mehdi v. George Brown College, 2010 HRTO 1486. The overarching claim contained in the Application is one based on alleged discrimination by the University as an institutional entity.

11With regard to the final consideration in Persaud, in my view the removal of Ms. Climans as a respondent would not be prejudicial to any other party. Particularly from an evidential standpoint, if she is not called as a witness in the Tribunal hearing by the institutional respondent, it is open to the applicant to summon her to a hearing pursuant to Tribunal Rule 3.

12In sum, applying all the factors set out in Persaud, I find that the personal respondent Nanette Climans should be removed from the Application. There is no issue of the institutional respondent’s ability to remedy any human rights violations found, both financially and otherwise. Leaving Ms. Climans as a respondent also has the potential to make the hearing process more lengthy and complicated.

Order

13The personal respondent Nanette Climans is removed from the Application.

14I am not seized.