HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shahenaz Alibhai
Applicant
-and-
Aditya Birla Minacs Worldwide Inc.
Respondent
INterim DecisION
Adjudicator: David Muir
Indexed as: Alibhai v. Aditya Birla Minacs Worldwide
1This is an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) filed March 11, 2011.
2In their Response filed on May 12, 2011, the respondents raised two potential preliminary issues. First the respondents state that the applicant had failed to plead any material facts that would support a finding of discrimination on the basis of age. Secondly, the respondents state that the limited allegations implicating the individual respondent are incapable of supporting the conclusion that she had done anything in contravention of the Code. In her Reply to a Response the applicant indicates that she agrees that the individual respondent is not a necessary party to the Application as long as the corporate respondent is responsible for all the actions of “its Team Leaders, Supervisors and Management” as related to the issues raised in this Application.
3In order to ensure the fair, just and expeditious adjudication of this Application, the Tribunal directed that the respondent deliver and file a Request for Order During Proceedings (“Request”) with respect to the issues outlined above. The respondent did so. The applicant has not responded to the Request.
The Request to remove the individual respondent
4Rule 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.
5The 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.
6In their Request the coporate respondent acknowledges that for the purpose of this application, it is prepared to accept responsibility for the allegations that the applicant has made against the individual respondent in the event that any of them amount fo a violation of the Code. Further the coporate respondent stated that it is able to provide a remedy to the applicant, in the event that Code liability for any of the individual respondent’s conduct is found. As noted earlier, the applicant consented to the individual respondent’s removal from the Application on the condition that the corporate respondent accepts liability for any liability for a Code violation that might be found to have occurred.
7In my view, having regard to the positions of the parties, as well as the factors outlined above, it is not necessary to continue to involve the individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application. The respondents’ request to remove the individual respondent to the Application is therefore granted and the style of cause amended accordingly.
The Age Issue
8The respondent states that other than checking off the box in the Form 1 indicating that the applicant is alleging discrimination on the basis of age, there are no facts alleged that draw a connection between the events described and age discrimination. The respondent also states that despite their raising this concern in their Response the applicant has not provided any further particulars in her Reply, or otherwise, that would relate to a claim of age discrimination.
9I have reviewed the Application and the applicant’s Reply, the flling of which was delayed because of extension requests by the applicant. There is no allegation in the Application that would support a finding of age discrimination. In her Reply the only allegation made by the applicant was that the respondent hired young advisors. As indicated previously the applicant did not respond to this Request.
10I am not satisified that there are any allegations in the Application or the applicant’s Reply that would engage a claim of age discrimination. The only reference to age in the Reply is a bald assertion that the respondent hired young advisors. That fact, if it is a fact, is insufficient without anything else to support the conclusion that the applicant’s right to be free of discrimination on the basis of age was infringed by the respondent. The parties are beginning their final preparations for the hearing of this case. A mediation was held that did not result in a settlement. At this late stage there are still no particularized allegations of age discrimination experienced by the applicant. In my view it would be unfair to leave this issue outstanding any longer. Accordingly I find it is most fair, just and expeditious that the issue of age discrimination be removed from the Application.
Orders:
11The Tribunal orders as follows:
The individual respondent is removed from the Application and the style of cause amended accordingly.
The allegation of discrimination in employment on the basis of age is removed from the Application.
12I am not seized.
Dated at Toronto, this 9th day of November, 2011.
“signed by”
David Muir
Vice-chair