HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wazi Khan

Applicant

-and-

Seneca College of Applied Arts and Technology and Karen Murkar

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: April 18, 2011

Citation: 2011 HRTO 744

Indexed as: Khan v. Seneca College

WRITTEN SUBMISSIONS

)

Wazi Khan, Applicant ) Self-represented

)

)

Seneca College of Applied Arts and ) Ann Burke, Counsel

Technology and Karen Murkar, Respondents )

)

1The applicant filed his Application on September 28, 2010, alleging discrimination in employment on the basis of race, place of origin, ethnic origin and age, contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The allegations concern an ongoing failure to hire the applicant for part-time teaching between January 2008 and the present.

2The respondents filed a Request for Order During Proceedings (Form 10) in which they asked the Tribunal to order the individual respondent, Karen Murkar, removed as a party to this Application. The Tribunal issued an Interim Decision, 2011 HRTO 568, in which it, among other things, asked for the applicant’s submissions on this issue. The applicant has since filed written submissions as per the Tribunal’s direction.

3As pointed out in the above-mentioned Interim Decision, Rule 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. [Emphasis added]

4The 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.

5The respondents submit that the individual respondent was acting in her capacity as Chair of the department when she made the hiring decisions concerning part-time faculty. However, they also submit that these hiring decisions are discretionary, rather than conducted through a formal system governed by established policies and procedures. That is, to use the words of Sigrist, supra, the individual respondent’s decisions can more accurately be classified as “individual conduct … as opposed to actions which are more in the nature of following organizational practices or policies.”

6Given the centrality of the individual respondent’s actions, I am not prepared to exercise my discretion and remove her as a party to these proceedings. Therefore, the respondents’ Request is denied.

7I am not seized of this matter.