HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elaine Faith Doucette Applicant
-and-
Toronto Transit Commission Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith Date: November 16, 2011 Citation: 2011 HRTO 2072 Indexed as: Doucette v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Ross Visconti and Thomas McPherson, Respondents | Steve Lavender, Counsel
Background
1The applicant filed an Application on February 15, 2011, 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 in the context of employment.
2In essence, the Application alleges that the respondent unlawfully denied her job promotions because of her female gender. The Application named both the institutional employer and Thomas McPherson and Ross Viscoti who were the applicant's department head and assistant department head respectively as respondents.
3The respondents filed a Response on June 7, 2011, which included a Request For an Order During Proceedings ("Request") asking for the removal of the personal respondents from the Application.
4In the Form 10 the respondents argue that:
a) The personal respondents were acting within the scope of their employment and their authority as management of the applicant's department with respect to the events complained of by the applicant;
b) The institutional respondent accepts vicarious liability for the actions of the personal respondents acting within the scope of their authority, pursuant to s. 46.3 of the Code;
c) The institutional respondent anticipates that both personal respondents would be called as witnesses should the Application proceed to a hearing; and
d) The applicant has not asked for a personal remedy against either personal respondent and there would therefore be no prejudice to the applicant by way of remedy if they were removed as personal respondents.
5Although the applicant filed a Reply to the respondents' Response on August 3, 2011, no submissions were made with regard to the Request to remove the personal respondents.
ANALYSIS
6Rule 1.7(b) of the Tribunal's Rules of Procedure 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 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.
8I find that all five parts of the Persaud test have been met in this matter. There is a corporate respondent who is alleged to be liable for the same conduct, it has accepted vicarious liability for the actions of the personal respondents, and there is no issue of the institutional respondent's ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. There is no basis for me to conclude that there is any 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.
Order
9The personal respondents are removed from the Application. The style of cause is amended accordingly.
10A two day hearing shall be scheduled to decide the Application on its merits.
11I am not seized.
Dated at Toronto, this 16th day of November, 2011.
"signed by"__________
Alan G. Smith
Member