HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Derek Siddall

Applicant

-and-

St. Clair College of Applied Arts and Technology

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: May 28, 2012

Citation: 2012 HRTO 1056

Indexed as: Siddall v. St. Clair College of Applied Arts and Technology

APPEARANCES

Derek Siddall, Applicant

Self-represented

St Clair College of Applied Arts and Technology, Respondent

Barry Brown, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of family status and disability.

2This Interim Decision deals with a dispute between the parties concerning the identity of the proper respondent(s) in this case. In the Application the applicant identified only John Fairley, Vice-President of Human Resources. On April 20, 2012 the applicant filed a Request for Order During Proceedings (Request) seeking to add St. Clair College of Applied Arts and Technology (St. Clair) as a respondent. On May 1, the respondent responded to the Request. The respondent indicated that it took no position on the applicant’s Request but stated that if St. Clair was added the individual respondent should be removed. The applicant has not responded to the respondent’s position.

3Rule 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.

The 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.

4Although the cases above were concerned with the removal of an individual respondent they are helpful in assessing whether in these particular circumstances a corporate respondent should be added. See also in Smyth v. Toronto Police Services, 2009 HRTO 1513 which also considered this issue.

5I find that in these circumstances that it is appropriate to add St. Clair as a respondent to the Application and remove the individual respondent. The allegations in the Application all relate to alleged harassment and differential treatment of the applicant in his employment, culminating in his dismissal from employment. St. Clair was the applicant’s employer, not the individual respondent. The applicant stated in his Request to add St. Clair that the individual was acting throughout in his capacity as a Vice-President of St. Clair. As the applicant’s employer St. Clair is in the best position to respond to the allegations all of which relate to the applicant’s employment and its termination. Accordingly St. Clair is added to the Application and the style of cause amended accordingly.

6I also find that it is appropriate to remove the individual respondent. I agree with St. Clair that if it is added to the Application there is no reason for continuing the Application against the individual respondent. The applicant acknowledged as much in his Request to add St. Clair stating that the individual respondent was acting at all times in his capacity as a Vice-President of St. Clair – hence his Request to add his employer, St. Clair. I note as well that the individual respondent is mentioned only once in the Application and it is not at all clear whether the reference to him is intended to be an allegation supporting a violation of the Code by the individual respondent. In any event there is no basis to conclude that it is likely that a finding of liability separate from that of St. Clair is remotely likely in the circumstances. Accordingly St. Clair is liable for any potential liability created by the individual respondent actions and able to respond to any remedial orders that might be made. I find that there appears to be no compelling reason to maintain the Application as against the individual and he is therefore removed from the Application and the style of cause amended accordingly.

7I am not seized of this case.