Donna Dixon v. The Corporation of the City of Mississauga, 2011 HRTO 679

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donna Dixon

Applicant

-and-

The Corporation of the City of Mississauga

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: April 8, 2011

Citation: 2011 HRTO 679

Indexed as: Dixon v. Mississauga (City)

WRITTEN SUBMISSIONS

Donna Dixon, Applicant ) Cecil Norman, Representative

Mississauga Transit, Dara Marcoccia ) and Roy Kenealy, Respondents ) Casey M. Dockendorff, Counsel

BACKGROUND

1The applicant filed an Application on June 8, 2010, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") in which she alleges discrimination on the basis of disability and sex in the context of employment.

2In essence, the Application alleges that the respondents unfairly terminated the applicant's employment. The applicant was initially dismissed from her position on October 15, 2008. Following a grievance filed by the Amalgamated Transit Union, Local 1572 ("Union"), the applicant was reinstated and signed a last chance agreement.

3The applicant's employment was terminated a second time on October 2, 2009. The applicant alleges that the respondents' decision to dismiss her did not fairly account for the stress-related health issues she experienced since entering into the last chance agreement.

4On October 8, 2010, the respondents brought a Request for Order During Proceedings (Form 10) asking the Tribunal to remove the two individual respondents 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.

5The applicant filed a Response to Request for Order on November 10, 2010, objecting to the removal of the personal respondents.

6All parties have agreed to mediate this dispute. Ordinarily the Tribunal would not consider this Request until after the mediation process. However, as one of the personal respondents is commencing a maternity leave as of March 31, 2011, and will be unavailable to participate in mediation for some time, in these circumstances, it seems more appropriate to determine the Request at this time so as to avoid any unnecessary delay in scheduling mediation.

ANALYSIS AND DECISION

7Rule 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 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.

8The 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.

9The respondents argue that all five parts of the Persaud test have been met and the two personal respondents should be removed from the Application.

10In his Reply the applicant appears to submit the following reasons for maintaining the personal respondents:

1. The personal respondents need to be found legally responsible for the alleged acts of discrimination and removal from the Application will signal to them that they, "should not abide by the Code";

2. The removal of the personal respondents would prejudice the applicant because, "removing the individual personal respondents without assessing their individual actions, behaviour and the resulting impact on the Applicant would prejudice the Applicant's chances in calculating her settlement position/remedies should the application be successful;

11In terms of the applicant's first objection, it 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 a corporate 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, although applicant's allegations impugn the conduct of the individual respondents, the overarching claim is one based on a pattern of alleged discrimination by various policies and procedures of Mississauga Transit as a whole. Therefore, removal of the personal respondents from the Application in no way sanctions the alleged acts of discrimination committed by those individuals in the course of their employment.

12The applicant's second argument must also fail. The corporate 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. From an evidential standpoint, if the personal respondents are not called as witnesses in the Tribunal hearing by the respondent it is open to the applicant to summon them to a hearing pursuant to Tribunal Rule 3. While the applicant makes general assertions that the conduct of the personal respondents could attract remedies specific to them and that she would be prejudiced were they to be removed, she does not provide specifics. There is no prejudice to the applicant's ability to proceed with a hearing of this matter and receive an adequate remedy if an infringement of the Code is established, see, Macdonald v. Toronto District School Board, 2010 HRTO 402.

13In sum, applying all the factors set out in Persaud, I find that all the personal respondents should be removed as parties to the Application. There is no issue of the corporate respondent's ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal.

ORDER

14The personal respondents are removed as parties to the Application and the style of cause amended accordingly.

15I am not seized.