Agila v. University of Ottawa, 2011 HRTO 2275

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nizar Agila

Applicant

• and-

University of Ottawa and Eve Tsai

Respondents

INTERIM decision

Adjudicator: Brian Cook

Date: December 20, 2011

Citation: 2011 HRTO 2275

Indexed as: Agila v. University of Ottawa

WRITTEN SUBMISSIONS

Nazir Agila, Applicant ) Paul Champ and Anne Levesque, ) Counsel

University of Ottawa and Eve Tsai, ) Karen A. Jensen, Counsel

Respondents )

Introduction

1This is an Application filed 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 goods, services and facilities, on the basis of race, colour, place of origin, citizenship, and ethnic origin. The Application names the University of Ottawa, and four doctors who are associated with the University.

2The University of Ottawa (the “University”) and three of the doctors filed a joint Response. Dr. Eve Tsai filed a separate Response.

3The purpose of this Interim Decision is to consider a request by the respondents that the personal respondents be removed as respondents.

Background

4The applicant is an International Medical Graduate. He was accepted into the neurosurgery residency program at the University of Ottawa medical school in October 2006. The clinical medicine part of the program was done at the Ottawa Hospital (the “Hospital”).

5The applicant was placed on probation in the program in August 2008 and then placed in remediation. In January 2009, the Residency Program Committee determined that the applicant had failed a rotation. In February 2009, the applicant was suspended from his clinical duties. The suspension was revoked in August 2009. However, according to the respondents, the Division of Neurosurgery at the Hospital decided that the applicant should not be permitted to return to clinical duties on the neurological service at the Hospital.

6At the time the Response was filed, the applicant had been permitted to complete two further rotations at the Hospital and steps were being taken to allow him to complete his residency at a different hospital.

7The respondents state that all of these measures were taken because of concern about the applicant’s medical abilities. The applicant alleges that the measures were influenced by discrimination on the basis of race, colour, ancestry, place of origin and ethnic origin.

Allegations about the personal respondents

8The applicant alleges that during his residency, he worked with Dr. Eve Tsai in the operating room and that on one occasion she was very rude and made discriminatory and racist comments. He alleges that on another occasion, Dr. Tsai humiliated him by pretending that she could not understand his English.

9Dr. Richard Moulton was the Chief of Neurosurgery at the University. He advised the applicant that he would be placed on probation and remediation and also told the applicant of the decision to suspend him in February 2009.

10The Application indicates that Dr. John Sinclair’s involvement in the events leading to the Application was limited to signing a letter in January 2009 that told the applicant that he had failed the remediation program.

11The Application alleges that Dr. Paul Bragg gave the applicant misleading information about his appeal rights and later gave him general information about the events that led to the decision to suspend the applicant.

12The respondents deny that any of the named respondents did or said anything that was discriminatory in their dealings with the applicant. The University argues that, in any event, the personal respondents were acting as agents of the University. The University states that it accepts any liability for the conduct of the personal respondents.

Removal of personal respondents

13Rule 1.7(b) provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO14 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.

14The 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:

1. Is there 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 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?

Submissions

15The respondents state that the University, as the corporate respondent, accepts full liability for the conduct of the personal respondents. The respondents allege that the personal respondents were all acting as agents of the University in the fulfillment of their duties for the University. The respondents further submit that there is no compelling reason to continue the Application against the personal respondents and that consideration should be given to the prejudicial effect of being named as respondents for the personal respondents who are respected members of the medical and academic communities. The respondents submit that there is no prejudice to the applicant if the personal respondents are removed because the individuals are available as witnesses in any proceeding and because the University accepts full liability.

16The applicant opposes the request to remove the personal respondents. The applicant alleges that their personal conduct is central to the allegations set out in the Application. The applicant alleges that Dr. Tsai, one of the personal respondents, personally discriminated against him by making discriminatory comments to him. The applicant also submits that this case involves “complex issues of vicarious liability given that it is unclear whether the personal respondents were acting as agents of the Ottawa Hospital or the University of Ottawa.” The applicant suggests that the determination of whether the Hospital or the University is vicariously liable for the actions of the personal respondents will require adjudication based on evidence and that it is accordingly premature for the Tribunal to consider removing the personal respondents at this point since the necessary evidence has not been heard.

Conclusions

17Based on the allegations set out in the Application, it appears to me that there is no reason for Richard Moulton, John Sinclair or Paul Bragg to be named as respondents in this Application. Dr. Sinclair and Dr. Bragg appear to have had only minimal involvement and are not alleged to have done anything discriminatory in their personal capacity. Dr. Moulton was more involved, but only in his capacity as Chief of Neurosurgery. While he was communicating decisions that the applicant alleges were discriminatory, they do not appear to have been decisions made unilaterally by Dr. Moulton but were instead made on behalf of various department, University, or hospital committees. In any event, as I have indicated, the University accepts responsibility for conduct of the personal respondents.

18The applicant suggests that these personal respondents should remain as personal respondents because some of the alleged actions and decisions may have been made by the Hospital and not the University. The Hospital has not been named as a respondent. In my view, this is not a valid reason for leaving Doctors Moulton, Sinclair and Bragg as respondents. If the applicant believes that he experienced discrimination by the Hospital or individuals associated with the Hospital, he may request that the hospital be added as a respondent but it is not reasonable to leave individuals as named respondents because of things that they are alleged to have done in the course of their duties with a different corporate entity that is not named in the Application.

19The allegations against Dr. Tsai are different than the allegations against the other personal respondents. The applicant alleges that Dr. Tsai personally said discriminatory things to him. As noted, Dr. Tsai denies this. The University has assumed full financial liability if any of the allegations against Dr. Tsai is found to be true. However, if the allegations were found to be true, the Tribunal could consider a remedy, including a non-monetary remedy that could involve Dr. Tsai personally.

20For all of these reasons, Richard Moulton, John Sinclair and Paul Bragg are removed as respondents and the title of proceedings is amended accordingly. At this stage, it is not appropriate to remove Eve Tsai as a personal respondent although this is not a final decision of the Tribunal on the question of whether she should be removed.

21I am not seized.