HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rania Tadros
Applicant
-and-
Salice Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Tadros v. Salice Canada
1The applicant filed an Application on June 14, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment because of disability. The Application originally named the applicant’s former employer as the corporate respondent and the applicant’s former manager as the personal respondent
2The respondents filed a Response (Form 2) on October 27, 2010, denying the allegations of discrimination and failure to accommodate.
3On November 12, 2010, the respondents filed a Request for Order During Proceedings (“RFOP”) asking that the personal respondent be removed from the Application.
4On November 22, 2010, the applicant filed a Reply (Form 3); however, the applicant did not file submissions in response to the respondents’ RFOP seeking to remove the personal respondent from the Application.
5From February 2011 to August 2011, the Tribunal and the parties exchanged various correspondence and communications with respect to mediation scheduling. Ultimately on August 12, 2011, despite initially indicating that they would mediate, the respondents advised the Tribunal and the applicant in writing that they no longer intended to participate in mediation and requested that the hearing be scheduled as soon as possible.
6On August 15, 2011, the applicant filed a RFOP asking that the Tribunal order the respondents to pay for the applicant’s costs for allegedly engaging in sharp practices and, in the alternative, an order requiring the respondents to attend at the scheduled mediation. The applicant indicated that, unless otherwise directed, she would attend the previously scheduled mediation.
7On August 26, 2011, the respondents filed submissions in response to the applicant’s RFOP. The respondents submit that the applicant’s request is without foundation and vexatious.
COSTS/MEDIATION
8The applicant seeks compensation for legal costs, presumably incurred as part of the scheduling of the mediation. I note that the Tribunal has expressly held in a number of cases that it does not have the jurisdiction to award legal costs. See Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940; Clennon v. Toronto East General Hospital, 2010 HRTO 506; Tulul v. King Travel Can, 2011 HRTO 438; Lopetegui v. 680247 Ontario, 2009 HRTO 1248; Farris v. Staubach Ontario Inc., 2011 HRTO 979 and M.O. v. Ottawa Catholic District School Board, 2011 HRTO 1174. The Request for an award of legal costs is therefore denied.
9It is also noteworthy that mediation is a voluntary and confidential process at the Tribunal. In light of the voluntary nature of the Tribunal’s mediation process, it would be inappropriate for the Tribunal to require any party to attend at mediation. The respondents have notified the Tribunal and the applicant in advance that they will not be attending at mediation. Given that mediation is a voluntary process, the respondents are entitled to decline to participate. As such, the scheduled mediation will be cancelled.
REMOVAL OF PERSONAL RESPONDENT
10In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:
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.
11The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:
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?
12The respondents Request that the personal respondent be removed from the Application. The respondents submit that the personal respondent was at all times acting in the regular course of his employment duties and that his alleged conduct is not a central issue. The respondents point out that the corporate respondent may be held liable for the alleged infringement and the corporate respondent is in the best position to satisfy any remedies.
13I accept the respondents’ submissions that the allegations pertain to the personal respondent acting in the course of his employment role and not in his personal capacity. I further accept that because all the allegations relate to decisions made and incidents that occurred in the workplace, the corporate respondent may also be liable. The applicant has not identified any prejudice or concerns with respect the corporate respondent’s responsibility and ability to satisfy any remedies. As such, there does not appear to be any compelling reason to continue the Application as against personal respondent given that, at all times, he was acting within the scope of his management responsibilities for the corporate entity.
ORDER
14For the reasons stated above, the applicant’s RFOP is denied and the scheduled mediation is cancelled. The respondents’ RFOP is granted. As such, the personal respondent is removed from the Application and the style of cause is amended accordingly.
Dated at Toronto, this 1st day of September, 2011.
”signed by”________
Ena Chadha
Vice-chair```