HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Valerie Drost
Applicant
-and-
Ottawa-Carleton District School Board
Respondent
interim decision
Adjudicator: Keith Brennenstuhl
Indexed as: Drost v. Ottawa-Carleton District School Board
WRITTEN SUBMISSIONS
Valerie Lynn Drost, Applicant ) Self-represented
Ottawa-Carleton District School Board, )
Althea Hay, Chris Borzecki and Kim Bacon ) Roger Mills, Counsel
, Respondents )
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination on the basis of disability in the area of employment.
2This Interim Decision addresses the Request for Order during Proceeding (the “Request”) filed by the respondents seeking an order removing Althea Hay, Chris Borzecki and Kim Benson as respondents.
3The applicant opposes the Request. She is seeking apologies from the individual respondents and maintains that the removal of the individual respondents as parties would deprive her of this remedy. In addition, the applicant contends that the conduct of the individual respondents is central to the Application; therefore it is imperative that they remain as parties to the Application.
BACKGROUND
4The respondent Ottawa-Carleton District School Board (the “OCDSB) is the English language public school board serving the jurisdiction of the City of Ottawa.
5The respondent Althea Hay was at all material times employed by the OCDSB as the Principal of W.O. Mitchell Elementary School.
6The respondent Chris Borzecki was at all material times employed by the OCDSB as its Supervisor of Occupational Health and Safety.
7The respondent Kim Benson was at all material times employed by the OCDSB as its Coordinator, disability Management.
8The applicant was at all material times employed by the OCDSB as an elementary school teacher at W.O. Mitchell Elementary School.
9The applicant has Multiple Chemical Sensitivities (“MCS”). She indicates that she requires a number of medical accommodations at the school where she teaches including the enforcement of “a zero-tolerance for scented products in the workplace” policy, having a whiteboard instead of a chalkboard, having a purifier in her classroom and a “less stressful” teaching assignment. The applicant alleges that the respondents infringed her right to equal treatment when they failed to accommodate her MCS.
10The respondents deny the allegations of discrimination. OCDSB acknowledges that at all material times, the individually named respondents were employees of the Board and acting within the course of their employment. OCDSB has assumed responsibility for the conduct of those employees should they be found to have violated the applicant’s rights under the Code.
ANALYSIS & DECISION
11Rule 1.7(b) 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:
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.
12The 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 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 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.
13The applicant argues that she will be deprived of a remedy, namely, apologies from the personal respondents, if they are removed and that this is a compelling reason for keeping them as parties. In support of her position she cites Agar v. North York General Hospital, 2009 HRTO 1165. In the Agar case, the Tribunal concluded that an apology is a remedy that has a different meaning coming from an individual as opposed to a corporate entity and found that the applicant, who was seeking an apology from a personal respondent, had a compelling reason to continue the application as against the personal respondent.
14While I do not disagree with the sentiment expressed in Agar, I am mindful of the Tribunal’s decision in Ogunyankin v. Queen’s University, 2010 HRTO 2035 which held that “… the mere fact that an applicant has requested an apology from a personal respondent is not, in and of itself, a sufficient basis to justify continuing the proceeding against that individual as a party without consideration of all of the factors outlined in the Persaud decision.” See also Osman v. Toronto District School Board, 2010 HRTO 2387.
15In this case, there is no question that the first three factors set out in Persaud are met. There is no issue of OCDSB’s ability to remedy any human rights violation found, both financial and through organizational changes, if ordered by the Tribunal. Further, OCDSB acknowledges, and it is not disputed, that the personal respondents were acting within the course of their employment and that OCDSB is responsible for the conduct of the personal respondents should a Code violation be found.
16In my view, OCDSB, and not the personal respondents, is in the best possible position to remedy the kind of discrimination alleged by the applicant. The role of the Tribunal is to ensure a fair, just and expeditious process for bringing this application to a final conclusion. In my view, these important objectives can be met by removing the personal respondents. The applicant’s right to a full hearing on the merits will not be affected and the full range of remedial orders will be available as against the OCDSB if the application is successful. Under these circumstances, I see no compelling reason in proceeding against any of the personal respondents.
17The applicant argues that the conduct of the personal respondents is central to the Application and that for this reason the Application needs to proceed against them. As to the conduct of the personal respondents it may be that their actions or decisions are relevant to the issues in the Application. However decisions or actions taken by corporate respondents or institutional respondents such as the OCDSB are necessarily effected through individual employees acting in the course of their employment. While the applicant’s allegations may impugn the conduct of the individual respondents (although there are no allegations whatsoever as against the personal respondent, Chris Borzecki) the overarching claim is one based on discrimination by various policies and decisions of her employer, OCDSB, as a whole. This is reflected in the Application where the applicant writes: “The actions of my employer have caused my disability, have contributed to the intensity of my disability, have caused by depression and anxiety disorders, and have caused me to feel like I have somehow done something wrong…”.
18If the personal respondents are not called as witnesses in the Tribunal hearing by OCDSB, it is open to the applicant to summons the personal respondents to a hearing pursuant to Tribunal Rule 3.
ORDER
19The personal respondents are removed as parties to the Application and the style of cause amended accordingly.
20I am not seized.
Dated at Toronto, this 24th day of August, 2011.
"Signed by"
Keith Brennenstuhl
Vice-chair