Singh v. Common Collection Agency Inc., 2012 HRTO 1092

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Casandra Singh

Applicant

-and-

Common Collection Agency Inc. and Kathleen Thomas

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: June 1, 2012

Citation: 2012 HRTO 1092

Indexed as: Singh v. Common Collection Agency Inc.

WRITTEN SUBMISSIONS

Common Collection Agency and Kathleen Thomas, Respondents

R. Gordon Hills, 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 disability. The hearing in this Application is scheduled for June 8, 2012.

2The respondents filed a Request for Order During Proceedings (“RFOP”) dated May 4, 2012 requesting that the Tribunal remove Jeffery Kerslake as a personal respondent because, they asserted, there were no allegations specifically against him in the Application. The applicant has not filed a Response to the RFOP and the time for doing so has elapsed.

analysis

3Pursuant to Rule 1.7 (b) of the Tribunal’s Rules, the Tribunal has the power to add or remove a party. The Tribunal reviewed its approach to the issue of whether an individual is properly named as a personal respondent in Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155 at paragraphs 6 – 8:

The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent Tribunal decisions including Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14 (Can LII) and Persaud v. Toronto District School Board, 2008 HRTO 31, 2008 HRTO 31).

In Sigrist the Tribunal set out the general approach to this issue, stating as follows (para. 42) :

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.

In Persaud, the Tribunal identified a list of factors to consider when determining whether a personal should be removed (para. 5):

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 [is] 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?

4Other than identifying Mr. Kerslake as a Vice President of the corporate respondent, there is no mention of him in the Application. Accordingly, applying the principles as set out above, the respondents’ request to remove Mr. Kerslake as a personal respondent is granted and the style of cause is amended accordingly.