Angela Strong v. Kubota Metal Corporation and Dorothy Bower, 2011 HRTO 2151

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angela Strong

Applicant

-and-

Kubota Metal Corporation and Dorothy Bower

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: November 30, 2011

Citation: 2011 HRTO 2151

Indexed as: Strong v. Kubota Metal Corporation

1The applicant filed this Application alleging discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Her Application named both an organizational respondent, Kubota Metal Corporation and an individual respondent, Dorothy Bower.

2This Interim Decision addresses the respondents’ Request for Order During Proceedings (Form 10) to remove the individual respondent, filed at the same time as it filed its Response. The applicant filed both a Response to the Request for Order (Form 11) and, on the same date, a Reply, which greatly expands upon the overview of allegations found in her Application.

3The respondents state that during the relevant period the individual respondent was acting in the scope of her employment and not in her individual capacity. In their Request to remove Ms Bower as an individual respondent, the respondents point out that Ms Bower is not even named in the narrative containing the particulars of the applicant’s allegations in her Application. As noted above, the Reply expands upon the more general allegations and Ms Bowers’ name is repeatedly mentioned.

4In Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 4, the Tribunal reiterated its concern about the “unnecessary naming of personal respondents” and offered a framework for considering whether to remove personal respondents:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

5There is no issue with respect to the deemed liability of the corporate respondent for the conduct of Ms Bowers, nor has the applicant raised any issue with respect to the corporate respondent’s ability to respond to or remedy the alleged infringement. However, it would appear from the Reply that the conduct of Ms Bowers is a central issue in this proceeding. It would not, therefore, be appropriate to remove the individual respondent at this stage.

6Accordingly, the respondents’ Request for Order is dismissed.

7I am not seized of this matter.