Sylvia Joly v. Aditya Birla Minacs, 2011 HRTO 664

Human Rights Tribunal of Ontario

B E T W E E N:

Sylvia Joly

Applicant

-and-

Aditya Birla Minacs

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: April 6, 2011

Citation: 2011 HRTO 664

Indexed as: Joly v. Aditya Birla Minacs

INTRODUCTION

1The applicant filed an Application on April 7, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination with respect to employment on the basis of disability.

2On November 24, 2010, the respondents filed a Request for Order During Proceedings ("Request") asking the Tribunal to remove the personal respondents as a parties to this Application.

3The applicant did not file submissions in response to the respondents' request to remove the personal respondents.

REQUEST TO REMOVE PERSONAL RESPONDENTS

4The respondents request that the Tribunal remove five individuals who are named in the Application as personal respondents. The respondents submit that the only appropriate respondent in this Application is the corporate respondent.

5In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

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 has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

7The respondents submit that all personal respondents were employees of the corporate respondent and held either team leader positions or roles within human resources and that was the basis of the impugned interactions with the applicant. The corporate respondent accepts that it is vicariously liable for any alleged Code violation. The respondents submit that no prejudice would be caused by removing the personal respondents as no remedies have been sought against them.

8In my view, considering all the circumstances, it is not necessary to involve the five named individuals as personal respondents in order to have a fair, just and expeditious resolution of the merits of the Application. I accept the respondents' submissions that the allegations pertain to the individuals acting in the course of their employment and not in their personal capacities. All of the allegations relate to decisions made and incidents that occurred in the workplace, for which the corporate respondent is also alleged to be liable. There is no concern with respect to the corporate respondent's responsibility and ability to satisfy any remedies. As such, there does not appear to be any compelling reason to continue the Application as against the personal respondents given that, at all times, they were acting within the scope of their employment responsibilities.

9The respondents' request to remove the personal respondents as parties to the Application is therefore granted. The style of cause is amended accordingly.

10In the Response filed on August 6, 2010, "Minacs Worldwide Inc" is identified as the corporate respondent. The Tribunal directs that within 7 days of this Interim Decision the corporate respondent to write to the Tribunal, copied to the applicant, clarifying its proper legal name and, if necessary, that the Application be amended to reflect the same.

11I am not seized of this matter.