Jennifer Lebert v. Municipality of Chatham-Kent, 2011 HRTO 795

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Lebert Applicant

-and-

Municipality of Chatham-Kent Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: April 21, 2011 Citation: 2011 HRTO 795 Indexed as: Lebert v. Chatham-Kent (Municipality)

INTRODUCTION

1The applicant filed an Application on May 31, 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 and sex.

2The applicant is employed as a personal care giver with a long-term care facility operated by the Municipality of Chatham-Kent (“Municipality”). The Application identified Dan Saunders (“Saunders”), the manager of the long-term care facility, as the only named respondent in the matter. The applicant alleges that she experienced discrimination in the workplace because her employer allegedly refused to provide appropriate accommodation and required her to undertake an independent medical examination because of mental health concerns.

3On March 29, 2011, the respondent filed a Request for Order During Proceedings (“Request”) asking the Tribunal to remove Saunders as a party to this Application and to consider substituting the applicant’s employer, the Municipality, as the respondent in this matter.

4The applicant did not file submissions in response to the respondent’s Request to remove Saunders.

REQUEST TO REMOVE AND SUBSTITUTE RESPONDENT

5The respondent requests that the Tribunal remove Saunders, the only individual named in the Application, as a personal respondent. The respondent submits that the appropriate respondent in this Application should be the applicant’s employer, the Municipality.

6In 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.

7The 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?

8The respondent submits that all allegations regarding Saunders relate to his role as a managerial employee of the long-term care facility with human resources responsibility and the impugned interactions with the applicant took place in this employment capacity. The Municipality accepts that it is vicariously liable for any potential alleged Code violation and that it should be substituted as the respondent in the Application. The Municipality submits that no prejudice would be caused by removing Saunders; whereas significant prejudice would incur to him because he would be forced to defend against the Application.

9Considering all the circumstances, it is not necessary to proceed against Saunders in order to have a fair, just and expeditious resolution of the merits of the Application. I accept the respondent’s submissions that the allegations pertain to Saunders acting in the course of his employment role and not in his personal capacity. I also accept that the Municipality is a proper substitute as potentially liable for the alleged violations. All of the allegations relate to decisions made and incidents that occurred in the workplace, for which the Municipality may also be liable. There is no concern with respect to the Municipality’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 Saunders given that, at all times, he was acting within the scope of his employment responsibilities for the Municipality.

10The respondent’s request to remove Saunders and substitute the Municipality as a respondent party to the Application is therefore granted. The style of cause is amended accordingly.

11The Municipality is order, within 35 days of this Interim Decision, to file with the Tribunal, copied to the applicant, its Response (Form 2) and specifically indicate whether it agrees to participate in mediation. If the Municipality agrees to mediate, the Registrar’s Office will schedule a mediation in this matter.

12I am not seized.