Walweed Al-Ghaithy v. University of Ottawa, 2011 HRTO 552

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walweed Al-Ghaithy

Applicant

-and-

University of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: March 18, 2011

Citation: 2011 HRTO 552

Indexed as: Al-Ghaithy v. University of Ottawa

WRITTEN SUBMISSIONS

Walweed Al-Ghaithy, Applicant ) Doug Christie, Counsel

The University of Ottawa, Richard Moulton, )

Gerard Jansen, John Sinclair, John Woulfe, ) Karen Jensen, Counsel

Paul Bragg, and Eve Tsai, Respondents ) )

Background

1The applicant filed an Application with the Tribunal on June 8, 2010, pursuant to section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent filed a Response on November 3, 2010.

3On February 25, 2011, the respondents brought a Request for Order During Proceedings (Form 10) asking the Tribunal to remove the six individual respondents as parties on the basis that they were not necessary parties, given the institutional respondent’s position that they were acting within the scope of their employment at all material times.

4The applicant filed a Response to the Request for Order on March 8, 2011. In the Response the applicant consented to the removal of Eve Tsai and John Sinclair as respondents to the Application. These parties are therefore removed from the Application on consent. It remains to decide whether the Request to remove the remaining four individual respondents should be granted.

ANALYSIS AND DECISION

5Rule 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 paragraph 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.

6The 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 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 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?

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.

7The respondents argue that all five parts of the Persaud test have been met and the remaining four personal respondents should be removed.

8In his Reply the applicant submits the following reasons for maintaining the four personal respondents:

1. The “complaints” were accepted by the HRTO;

2. The “complaints” were accepted as such by the University and its agents and no objections were raised before;

3. There is evidence that their actions were not of normal day duties for faculty members;

4. There actions were independently responsible for institutional failure.

9The applicant’s first reason is irrelevant to the analysis. The fact that the Tribunal accepts an application for processing has no bearing on whether individual respondents should later be removed. Moreover, Tribunal Rule 1.7 states that, “In order to provide for a fair, just and expeditious resolution of any matter before it the Tribunal may:…(b) add or remove a party”.

10The second point raised by the applicant seems to suggest that the institutional respondent is barred from now arguing for the removal of personal respondents because the Request for removal was not contained in its Response. This argument is also clearly invalid, see Tribunal Rule 19.1 which states, “A party may request that the Tribunal make an order at any time during a proceeding by…written request” (emphasis added). The applicant does not suggest he is prejudiced by the timing of the Request.

11The applicant’s third point seems to address the fourth part of the Persaud test - that at least some of the personal respondents’ actions toward the applicant could be characterized as not within the scope of their workplace duties. In support of this assertion the applicant has provided documentary evidence in the form of alleged email conversations between various personal respondents which, he contends, is “ample evidence of individual malice and misfeasance, and calculated bias which sought the destruction of Dr. Al-Ghaithy’s career”.

12However, in the Tribunal’s view an analysis of this new material, along with that contained in the Application, does not reveal any actions on the part of the personal respondents which would substantiate individual liability. Even if I accept the allegation that some of the personal respondents’ actions were not authorized by institutional policy, that is not, in itself, a reason to continue the proceeding against them. The institutional respondent has accepted vicarious liability for all the actions of the personal respondents and the Tribunal is satisfied that the institutional respondent is capable of remedying any infringement of the Code.

13Also, with regard to the fourth part of the Persaud test, the applicant’s argument regarding the personal respondents’ responsibility for “institutional failure” and his request for “public interest remedies” in the Application appears to reflect a concern that the removal of the personal respondents would prevent such remedies being ordered by the Tribunal. However, systemic remedies that may lead to changes of various kinds within an organization do not require orders against individuals. See, for example, Avraham v. York Region District School Board, 2009 HRTO 1269.

14It may be that the actions or decisions of the personal respondents are relevant to the issues in the Application, but this is true of many applications in which responsibility ultimately rests with an organizational respondent. Decisions or actions taken by organizational respondents are necessarily effected through individual employees or officers, acting in the course of their employment. In that regard, the Tribunal agrees with the respondents’ submissions that, although the allegations impugn the conduct of the individual respondents, the overarching claim is one based on a pattern of alleged discrimination by various entities and procedures of the University as a whole.

15In sum, applying all the factors set out in Persaud, I find that all the personal respondents should be removed from the Application. There is no issue of the University’s ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. In the Tribunal’s view, leaving these individuals as respondents has the potential to prolong and make the hearing process more complicated.

Order

16The personal respondents shall be removed as parties to this Application and the style of cause amended accordingly.

17I am not seized.