HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joy Roseclair Barnwell
Applicant
-and-
Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Government Services
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Barnwell v. Ontario (Government Services)
WRITTEN SUBMISSIONS
Joy Roseclair Barnwell, Applicant
Osborne Barnwell, Counsel
Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Government Services and Marsha Smith, Respondents
Jennifer Richards, Counsel
1This is an Application filed on September 20, 2011 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 race, colour, ancestry, place of origin and ethnic origin.
2The Application alleges the respondents discriminated against the applicant when they excluded her from interviewing for an employment opportunity and failed to provide her with a number of workplace opportunities and career development.
3The purpose of this Interim Decision is to address the respondents Request for an Order During Proceedings (the “Request”), filed on April 3, 2012, to remove the individual respondent, Marsha Smith. The applicant filed a Response to a Request for an Order (the “Response to Request”) on April 12, 2012 opposing the Request.
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 paragraph 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 paragraph 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:
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?
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 submitted the criteria for removal of an individual respondent set out in Persaud, supra, are met in this case. They submit that there is a organizational respondent, the Ministry, that is also alleged to be liable for the alleged discrimination. The Ministry has accepted vicarious liability in this matter and submits that it is in the best position to affect remedies for any violations of the Code. The respondents submit that the allegation arise in the context of the individual respondent’s employment; therefore, there is no compelling reason to continue the proceeding against the individual respondent. The applicant would suffer no prejudice because the applicant will remain a compellable witness and the Ministry shall have to answer any claims of discrimination. Accordingly, the respondents submit there is no basis on which to conclude that it is necessary to continue the proceeding against the individual applicant.
7The applicant submitted that the individual respondent’s behaviour is at the heart of the application and that the applicant ought to have the opportunity to speak about the effect the alleged discriminatory conduct had on her in the presence of the individual respondent. The applicant also submits that the remedies she seeks are not restricted to monetary compensation, but also includes an apology, which may assist in restoring her dignity. The applicant submits that removal of an individual respondent may be appropriate in cases of indirect discrimination, which is not the case in this Application. Finally, the applicant states that “in the normal course” the individual respondent’s conduct would be considered tortious. Accordingly, she would be held jointly and severally liable with the Ministry for any remedy, pursuant to the common law doctrines regarding the circumstances in which officers, directors or employees can be held personally liable for their conduct.
8Having regard to the Tribunal’s jurisprudence on this issue, I find it appropriate to remove the individual respondent. The incidents in question arise in the context of the individual respondent’s employment and the Ministry has accepted vicarious liability. The applicant did not raise any issue with the Ministry’s ability to remedy any Code infringement.
9The applicant is correct that the individual respondent’s conduct is central to the Application, but that is true of most Applications involving organizational respondents, which can only work through its directors, officers and employees. The Ministry will likely require the individual respondent’s testimony to defend its position and the applicant can require her testimony if she is not otherwise called. Consequently, the applicant shall not be denied an opportunity to address the individual respondent at the hearing of this matter if she so chooses.
10The fact that the applicant may seek an apology from the individual respondent as part of her remedies is not a strong consideration in deciding whether to remove them as parties. As the Tribunal stated in Abdallah v. Thames Valley District School Board, 2008 HRTO 230:
Historically, the jurisprudence of this Tribunal has generally declined to order parties to provide an apology on the basis that such orders are viewed as inappropriate or an ineffective remedy and raise potential freedom of expression concerns; see summary of caselaw in Turnbull v. Famous Players, 2001 CanLII 26228 (ON HRT), 2001 (2001) 40 C.H.R.R. 333 at paragraph 264.
11All the remaining remedies being sought by the applicant are within the power of the Ministry to implement if ordered by the Tribunal
12In Seneca College v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 SCR 181, the Supreme Court of Canada ruled that there is no independent tort of discrimination. Accordingly, the common law doctrines regarding the personal liability of employees have no applicability in this case. The nature of the alleged discrimination, i.e., whether it is direct or indirect, has not been a criterion considered by the Tribunal when considering requests to remove individual respondents. The applicant’s submission provided no basis for concluding that this distinction is a relevant consideration.
13In my view, it is not necessary to involve the individual respondent as parties in order to have a fair, just and expeditious resolution of the merits of the Application.
Order
14The Application is dismissed as against the individual respondent. The style of cause is amended accordingly.
Dated at Toronto, this 27th day of June, 2012.
“signed by”
Douglas Sanderson
Vice-chair