Manoso v. Rock-Tenn Company, 2011 HRTO 87

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margarita Manoso

Applicant

-and-

Rock-Tenn Company (Alliance Display Company of Canada),

Kannan Srivarapathy, Mike Huber and Denise Alstrom

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 12, 2011

Citation: 2011 HRTO 87

Indexed as: Manoso v. Rock-Tenn Company

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to remove the six named individual respondents as parties to this Application.

BACKGROUND

2The applicant filed this Application on August 18, 2010, alleging harassment and discrimination in employment on the basis of disability, age and association, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She named the company (“Rock-Tenn”) for which she worked and six individuals employed with Rock-Tenn as respondents to this Application.

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

DECISION AND ANALYSIS

4Rule 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.

5The 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.

6The respondents submit that there is no issue with respect to the first three parts of the Persaud test, given that Rock-Tenn has been named, is able to respond to and remedy the alleged infringements, and accepts that it is liable for the acts of the individual respondents, whom it submits were all acting within the scope of their employment.

7It is not clear from the applicant’s submissions whether the applicant disputes this position, but in any event, the applicant has failed to provide any basis for concluding that Rock-Tenn has not, in fact, accepted liability for the actions of the six individual respondents.

8With respect to the fourth part of the Persaud test, the respondent submits that “[n]o specific individual misconduct of an individual respondent is a central issue to the case.” The applicant submits, in response, that their “actions and behaviour are central to this Application,” but does not offer any further explanation. In the absence of further argument about why their actions and/or behaviour are central, it is left to me to determine on the face of the pleadings whether this is so.

9With respect to Janet Mullins and Bill Atcheson, both are employed in the American offices of Rock-Tenn, while the applicant was employed in Rock-Tenn’s Ontario office. In paragraph 22 of the Application, the applicant alleges that she sought help from management, including these two individuals, to effect a healthy work environment. The applicant does not particularize when she approached these individuals, in what manner she approached them and what their responses were, except to comment generically that she did not get the help she sought from anyone she approached.

10The applicant also alleges in paragraph 21 of her Application that Mr. Atcheson referred to her as an “old cleaner” on several occasions between October 2009 and May 2010, but provides no context to these remarks. For instance, she does not state how she came to know this, or whether she knew whether this term was in relation to her age or her length of service. The applicant’s failure to provide any further particulars concerning this that this particular allegation suggests it is peripheral to her Application.

11Likewise, with respect to Jim Lamb, the General Manager at Rock-Tenn’s Ontario facility, the only allegation against him is found in paragraphs 24 and 25 of the Application. The applicant alleges that she suffered from a panic attack after being verbally harassed by a co-worker, Kannan Srivarapathy, and went to see Mr. Lamb, who was unresponsive to her concerns and advised her not to threaten someone else’s job.

12Mr. Lamb, Mr. Atcheson and Ms Mullin’s alleged conduct is part of an overall pattern of alleged non-responsiveness on the part of management to the applicant’s concerns about what she believed to be harassment and discrimination. Regardless of whether their conduct was inappropriate, the Application makes it clear that their role was secondary compared to that of the other three named respondents, Mr. Srivarapathy, Mike Huber and Denise Alstrom.

13Significantly, the applicant has not sought individual remedies against any of the six named individual respondents. In her submissions on the Request to remove the individual respondents, the applicant clarifies that she wishes the Tribunal to find them “legally responsible” for the alleged discrimination and harassment, but does not suggest that she is seeking remedies against any of them individually.

14Section 36 of the Code states:

The parties to an application under section 34 or 35 are the following:

1. In the case of an application under subsection 34 (1), the person who made the application.

2. In the case of an application under subsection 34 (5), the person on behalf of whom the application is made.

3. In the case of an application under section 35, the Commission.

4. Any person against whom an order is sought in the application. (emphasis added)

5. Any other person or the Commission, if they are added as a party by the Tribunal.

15The applicant, through her representative, cites s. 39(2) (e) of the former Code concerning the parties to a proceeding before the board of inquiry (i.e., the predecessor to the Tribunal), but that provision has long since been repealed and is of no assistance in determining this issue. Likewise, the applicant’s reliance on the Ontario Human Rights Commission’s procedural manual and guidelines on the proper naming of respondents is not persuasive in light of the very different regime for enforcing human rights currently in place.

16With respect to whether there would be any prejudice, the applicant submits the following: “It would limit her options in assessing the settlement position to only the corporate respondent if the Application is successful.” It is not entirely clear what the applicant is saying, but this statement appears to suggest that she would lose a tactical advantage in settling this matter if she is not able to name a large number of individual respondents, some of whom hold very senior positions. This is not a principled basis on which to make a determination about whether to continue against individuals named in a human rights application.

17In light of the above, I find that there is no basis for continuing the proceeding against Jim Lamb, Janet Mullins and Bill Atcheson. For the reasons discussed below, it would be premature at this stage to decide whether to continue the proceedings against the three remaining individual respondents, Kannan Srivarapathy, Mike Huber and Denise Alstrom.

18The parties have indicated an interest in proceeding to mediation on this matter once the preliminary issue of removing the individual respondents was addressed. The respondents have raised other preliminary issues in their Response that presumably can be determined if the matter is not resolved at mediation. In the event that there are interim rulings on other preliminary issues, this may impact on whether it is appropriate to continue against the remaining individual respondents. At this point, such a determination would be premature.

19The respondents’ request to remove Jim Lamb, Janet Mullins and Bill Atcheson as individual respondents to the Application is therefore granted, while the request to remove Kannan Srivarapathy, Mike Huber and Denise Alstrom is denied. The style of cause shall be amended accordingly.

20I am not seized of this matter.