HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Laura Fry
Applicant
-and-
Running Room Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Fry v. Running Room Canada Inc.
INTRODUCTION
1The applicant filed an Application on February 9, 2011 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.
2The applicant was employed by Running Room Canada Inc. (“Running Room”) as a store manager. The applicant alleges that her employment was terminated because of her disability. The Application identified the store’s area manager (“personal respondent”) as the only named respondent in the matter.
3On April 4, 2011, the personal respondent and Running Room filed a Response and a Request for Order During Proceedings (“Request”). The Request seeks that the personal respondent be removed as a party to this Application and that Running Room be substituted as the respondent in this matter.
4The applicant did not file submissions in response to the respondent’s Request.
REQUEST TO REMOVE AND SUBSTITUTE RESPONDENT
5The respondent submits that the appropriate respondent in this Application should be the applicant’s former employer, namely Running Room.
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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
8The respondent submits that all allegations regarding the personal respondent relate to her role as a managerial employee of the corporate entity and the impugned interactions with the applicant took place in this employment capacity. Running Room seeks to replace the personal respondent and indicates that it will take responsibility for the alleged conduct of the personal respondent.
9The respondent indicated that it was seeking a conference call be convened for the purposes of hearing this Request. I find that the matter can be dealt with based on the written materials already filed and therefore, a conference call is not necessary. I am also satisfied that, considering all the circumstances, it is not necessary to proceed against the personal respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
10I accept the respondent’s submissions that the allegations pertain to the personal respondent acting in the course of her employment role and not in her personal capacity. I further accept that the employer, Running Room, is a proper substitute as it is potentially liable for the alleged violations. All of the allegations relate to decisions made and incidents that occurred in the workplace, for which Running Room may also be liable. The applicant has not identified any prejudice or concerns with respect to Running Room’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 personal respondent given that, at all times, she was acting within the scope of her employment responsibilities for the corporate entity.
11The respondent’s request to remove personal respondent and substitute Running Room as a respondent party to the Application is therefore granted. The style of cause is amended accordingly.
12Running Room is ordered, within 5 days of this Interim Decision, to write to the Tribunal, copied to the applicant, confirming that the Response (Form 2) was filed on its behalf and specifically indicating whether or not it agrees to participate in mediation. If Running Room agrees to mediate, the Registrar’s Office will schedule a mediation in this matter.
13I am not seized.
Dated at Toronto, this 16th day of May 2011.
“Signed By”
Ena Chadha
Vice-chair```