HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
AiLian Ou
Applicant
-and-
Sheridan Institute of Technology & Advanced Learning
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Ou v. Sheridan Institute of Technology & Advanced Learning
1This Application was filed on May 16, 2011, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) against Sheridan Institute of Technology & Advanced Learning and Sunand Sharma (collectively the “respondents”). The respondents filed their Response on June 23, 2011 and the applicant filed a Reply on July 6, 2011.
2This Interim Decision addresses a Request by the respondents for an Order During Proceedings to remove Sunand Sharma as a personal respondent. Mr. Sharma is employed by the Institute of Technology & Advanced Learning (the “Corporate respondent” or the “College”) as the College’s Students Right and Responsibility Officer.
SUMMARY OF FACTS
3The Application alleges amongst other things, discrimination in goods, services and facilities on the grounds of age, ethnic origin and reprisal arising out of actions taken by the respondents in response to concerns about the applicant’s conduct. The respondents have denied any breach of the Code.
4The parties agree that the applicant is enrolled in a two year accounting program at the College. In the second semester of her second academic year at the College the applicant enrolled in a Business Communication course (the “Course”) which included the requirement that all students participate by posting comments on a discussion board.
5The respondents state that on or about March 2011, some of the applicant’s comments with respect to Muslims were removed by her professor from the discussion board because she deemed these to be inappropriate business communications. These comments do not need to be reproduced for the purposes of this decision. Though the applicant admits having posted these comments she denies that they were inappropriate but does not take issue with their removal from the discussion board.
6The parties agree that the applicant was required to work in a group for an assignment in the Course and that the students were having difficulties working together cohesively. The Response alleges that the professor heard the applicant raise her voice during a team meeting. The applicant in her reply acknowledges that “she raised her voice a little” because she felt another student in the group was slandering her. The parties agree that the applicant sent her professor an e-mail comparing her current situation to “rape victims under Islamic law” because the applicant felt that the professor had sided with her slanderer. The professor sought Mr. Sharma’s assistance to address these issues.
7On or about April 4, 2011 a meeting was arranged between Mr. Sharma, the professor and the applicant. In her reply the applicant states that Mr. Sharma made her professor pull out her “academic posts on Islam as the basis to harass me.” She alleges, amongst other things that, during this meeting that her professor and Mr. Sharma hinted that the difficulties with her group might be due to her age. In defence that she had raised her voice she advised that this was “because Chinese raised in Chinese Culture usually speak in a louder voice” and that this became a cultural habit. She alleges that Mr. Sharma told her to adopt Canadian cultural habits and to get rid of her Chinese ones. The respondents have denied that Mr. Sharma has made these comments.
8The applicant states that the second part of the meeting was Mr. Sharma’s “political ambush” against her and a reprisal for having excercised her rights under the Canadian Charter and the Code. The parties agree that the applicant was given a verbal warning for having violated the College’s policies with respect to her communications about Muslims and that she was told by the College to keep her opinions of Muslims to herself. The applicant takes the position that no one can tell her to keep her opinions to herself and that she has a constitutional freedom of thought, belief, opinion and expression.
9It does not appear that the applicant had any other interactions with Mr. Sharma other than the April 4, 2011 meeting.
POSITION OF THE PARTIES
10The respondents submit that it is appropriate to remove Mr. Sharma as a personal respondent because at all times he was acting within the scope of his employment. The College has stated that it is prepared to take responsibility for the conduct of Mr. Sharma.
11The applicant opposes the respondents request to remove Mr. Sharma as a personal respondent. She takes the position that Mr. Sharma was acting against the course of his employment because he was not following the College’s policies and code of conduct. The applicant also states that there is a juridical reason to retain Mr. Sharma as a personal respondent because removing him would deliberately leave the infringer at large and jeopardize the students of the College.
DECISION
12Rule 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.
13The 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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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.
14I agree with the respondents’ submissions that all the factors in Persaud have been met. In my view, considering all the circumstances, it is appropriate to remove Mr. Sharma as a personal respondent. Mr. Sharma’s involvement in this case was in his capacity as the College’s Students Right and Responsibility Officer. The College is clearly vicariously liable for his actions and has agreed to assume responsibility for the conduct of Mr. Sharma. Further, I find that Mr. Sharma was enforcing the College’s policies and all communications with the applicant were for that very limited purpose. Therefore, I do not find that there is a compelling reason, in these circumstances, to maintain Mr. Sharma as a personal respondent.
15Further, the Tribunal notes that no specific penalty is being sought against Mr. Sharma. Though the applicant is seeking that the College remove Mr. Sharma from his position as Students Right and Responsibility Officer as a remedy, this by itself is not a compelling reason to maintain him as a personal respondent although he may be an affected party entitled to intervene if he wishes to make such a request.
ORDER
16The Tribunal Orders the removal of Sunand Sharma as a personal respondent. The title of Proceedings shall be amended accordly to remove his name.
17I am not seized.
Dated at Toronto, this 8th day August of 2011.
“Signed by”
Geneviève Debané
Vice-chair