HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

I.A. by his next friend A.A.

Applicant

-and-

Waterloo Catholic District School Board

Respondent

INTERIM DECISION

Adjudicator: Ian R. Mackenzie

Date: October 18, 2011

Citation: 2011 HRTO 1877

Indexed as: I.A. v. Waterloo Catholic District School Board

Written submissions

)

Karolina Nguyen, Respondent ) Jerry Raso, Counsel

)

)

Waterloo Catholic District School Board, ) Melanie McNaught, Counsel

Respondent )

)

INTRODUCTION

1I.A. 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 in services on the basis of race and colour. The purpose of this Interim Decision is to address the Request for an Order during a Proceeding (“RFOP”) of the respondent Karolina Nguyen to add the Waterloo Catholic District School Board (the “School Board”) as a respondent and to remove her as the individual respondent.

2The alleged discrimination relates to an incident involving Ms. Nguyen, who is a teacher at an elementary school under the School Board. Ms. Nguyen is alleged to have made discriminatory comments to the applicant. The applicant is seeking a monetary remedy.

3Ms. Nguyen is represented by the Ontario English Catholic Teachers Association and a Response was filed on her behalf on March 16, 2011. A mediation was held on August 10, 2011 and was unsuccessful. The RFOP was filed on September 19, 2011.

4Ms. Nguyen submits that the School Board should be a respondent, as she was acting in the course of her duties as an employee of the School Board. Ms. Nguyen also submits that because she was acting in the course of her duties she should be removed as a personal respondent.

5The School Board submits that it appeared from the RFOP that Ms. Nguyen was acting in the course of her employment. It did not object to being added as a respondent. It also did not object to the Request that Ms. Nguyen be removed as a respondent.

6The applicant provided no submissions on the Request to add the School Board as a respondent or the Request to remove the personal respondent.

Request to add a respondent

7Rule 1.7(b) of the Tribunal’s Rules of Procedure allows the Tribunal to add or remove a party.

8The Code states that 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”: subsection 46(3). As noted above, the School Board acknowledges in its submission that it appears from the RFOP that Ms. Nguyen was acting in the course of her employment with the Board, and does not object to being added as a respondent. It is therefore appropriate to add the School Board as a respondent. The style of cause will be amended accordingly.

9The School Board will be provided with a copy of the Application and will have an opportunity to file a Response within 35 days of the date of this Interim Decision.

Request to remove individual respondent

10The Tribunal has provided the following non-exhaustive list of factors to assist in the assessment of whether a personal respondent should be removed (Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5):

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?

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.

11Ms. Nguyen submits that she was acting in the course of her employment. She submits that the applicant complained about the alleged discrimination to the School Board and it conducted a full investigation. She states that the School Board concluded that she was acting in the course of her duties. She also submits that the School Board has the ability to remedy the alleged Code violations and that there is no prejudice to the applicant in removing her as a respondent. The respondent relies on King v. Toronto Public Library Board, 2010 HRTO 2417.

12The School Board states that it appears that Ms. Nguyen was acting in the course of her employment. The remedy being sought is a monetary one and is within the capacity of the School Board to respond to. There is no allegation of harassment against Ms. Nguyen. I find that it is not necessary to involve Ms. Nguyen as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.

13The request to remove Ms. Nguyen as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.

14I am not seized of this matter.

Dated at Toronto, this 18^th day of October , 2011.

”signed by”________

Ian R. Mackenzie

Vice-chair