Viney v. Volkswagen Group of Canada, 2011 HRTO 324

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michelle Viney

Applicant

-and-

Volkswagen Group of Canada and VW Credit Canada Inc.

Respondents

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 15, 2011

Citation: 2011 HRTO 324

Indexed as: Viney v. Volkswagen Group of Canada

WRITTEN SUBMISSIONS

Michelle Viney, Applicant ) William J. Hayter, Counsel

Volkswagen Group of Canada and ) Geneviève Débané, Counsel

Donald McQuinter, Respondents )

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), raises allegations of discrimination in employment on the basis of family status, marital status, and association with a person identified with a Code-related ground. The Application also alleges reprisal or threat of reprisal.

3The Application originally named the Volkswagen Group of Canada (“Volkswagen”) and its director of human resources, Donald McQuinter, as respondents. In an earlier Interim Decision, 2010 HRTO 1309, the Tribunal granted the applicant’s Request to add VW Credit Canada Inc. (“VW Credit”) as a further respondent to the Application.

4The matter has been scheduled for hearing on May 18 and 19, 2011.

5The purpose of this Interim Decision is to address a Request for Order During Proceedings (“Request”) filed on January 24, 2011 on behalf of Volkswagen and McQuinter seeking the removal of Donald McQuinter as respondent.

6VW Credit does not object to the Request. Counsel for the applicant has filed detailed written submissions opposing the Request.

OVERVIEW

7In essence, the applicant alleges that she was discriminated against when the original respondents applied a nepotism policy and denied her a job opportunity in the same business unit as her spouse. The applicant also alleges that all of the respondents denied her subsequent job opportunities.

8The respondents deny the allegations of discrimination and reprisal. They argue that the nepotism policy does not violate the Code. In addition, they raise issues regarding the jurisdiction of the Tribunal.

REQUEST TO REMOVE THE INDIVIDUAL RESPONDENT

10The Tribunal set out its general approach to this issue in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. It wrote:

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.

11In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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 [is] 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?

12Volkswagen states that the personal respondent was acting wholly within the normal course of his employment. While Volkswagen denies the allegations of discrimination, it accepts liability for the actions of the personal respondent should the Tribunal find in favour of the applicant.

13The applicant objects to the removal of the personal respondent on a number of grounds. She argues that:

a. the respondents had several opportunities to seek the removal of McQuinter as a party, but chose not to do so until this late stage of the proceedings. The applicant argues that the respondents should be precluded from making this Request and/or that the timing of the Request should be a factor in the Tribunal’s consideration of the issue;

b. the removal of the personal respondent would shelter him from scrutiny even though, she argues, a prima facie case of discrimination has been established;

c. there are specific allegations against McQuinter, whom she says was engaged in conduct for which an individual sanction would be appropriate; and,

d. the removal or the individual respondent would impair her case and prejudice her ability to determine why the alleged discrimination occurred.

14In my view, in light of Volkswagen’s position, it is appropriate to remove the individual respondent in this matter. I am satisfied that the factors set out in Persaud are met.

15The hearing is not for three months and, while I do not disagree that the respondents might have made this Request at an earlier stage, I am not satisfied that the timing of the Request is prejudicial or that it ought to be a factor in my determination of the issue in the circumstances.

16While counsel for the applicant argues that it would be appropriate to impose a sanction against McQuinter, I note that the Application does not seek any specific remedies against him.

17In her Response to the Request, the applicant elaborates significantly upon the alleged role played by McQuinter in this matter. She makes a number of factual allegations that go beyond the information contained in the Application. None of the applicant’s submissions or allegations suggest that McQuinter engaged in any conduct that went beyond the normal course of his employment. Based on the materials before me, I find that there is no compelling reason to continue the proceeding against the personal respondent.

18Finally, I fail to see how the applicant’s case will be prejudiced by the removal of the personal respondent. The fact that he is no longer a respondent to the Application does not mean that he may not testify at the hearing. Should the respondents fail to include him in their list of witnesses, the applicant may request a summons and ensure that his evidence is before the Tribunal.

19For these reasons, I order that the personal respondent be removed as a party to this Application. The style of cause is amended accordingly.

20I am not seized of this matter.