HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Beulah Arena
Applicant
-and-
Kintetsu World Express (Canada) Inc.
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Arena v. Kintetsu World Express (Canada)
WRITTEN SUBMISSIONS BY
Kintetsu World Express (Canada) Inc., and Masahiko Takeda, Respondents ) David Molson, Counsel
BACKGROUND
1The applicant filed an Application on September 23, 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 sex and age in the context of employment.
2In essence, the Application alleges that the respondent unlawfully terminated the applicant’s employment on June 7, 2010. The Application named both the employer corporation and Masahiko Takeda, the corporation President, as respondents.
3The respondents filed a Response on November 12, 2010.
4On August 5, 2011, the respondents brought a Request for Order During Proceedings (Tribunal Form 10) asking the Tribunal to remove the individual respondent, arguing that he, “is not implicated in any decision or interaction regarding the applicant either directly or indirectly that could lead to even a finding of an allegation of a breach under the [Code]…”.
5The applicant has not responded to the Form 10.
ANALYSIS
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:
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 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.
8It appears that all five parts of the Persaud test have been met. There is no issue of the corporate respondent’s ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. The nature of the alleged conduct of the personal respondent is not an issue. Indeed, a review of the Application confirms that the personal respondent is not mentioned anywhere in the narrative. There is no prejudice to the applicant’s ability to proceed with a hearing of this matter and receive an adequate remedy if an infringement of the Code is established. See, Macdonald v. Toronto District School Board, 2010 HRTO 402.
9In sum, applying all the factors set out in Persaud, I find that the personal respondent should be removed from the Application. In my view, leaving the individual respondent as a party to the proceedings has the potential to prolong and make the hearing process more complicated.
ORDER
10The personal respondent is removed from the Application. The style of cause is amended accordingly.
11A hearing shall be scheduled to decide the Application on its merits.
12I am not seized.
Dated at Toronto, this 29th day of August, 2011.
“Signed by”
Alan G. Smith
Member