HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randall Crook
Applicant
-and-
Toyota Motor Manufacturing Canada Inc.
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Crook v. Toyota Motor Manufacturing Canada Inc.
WRITTEN SUBMISSIONS
Toyota Motor Manufacturing Canada Inc., Respondent
Theodore Kovacs, 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 purpose of this Interim Decision is to deal with the respondents’ Request for Order During Proceedings seeking to remove the personal respondent, Laryn Sears, as a party.
ANALYSIS
2Pursuant 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 paras. 6 – 8:
6The 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 (Can LII) and Persaud v. Toronto District School Board, 2008 HRTO 31).
7In 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.
8In Persaud, the Tribunal identified a list of factors to consider when determining whether a personal respondent 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?
3The personal respondent is a Team Member Relations Specialist working with the corporate respondent. The Application alleges that the applicant’s employment was terminated because he was late for work due to a medical appointment, despite having been assured by the personal respondent that his medical appointments would be accommodated. The Application only mentions the personal respondent in the context of her acting in the course of her duties well before the time of his termination: discussing his health problems, assuring him that his medical appointments would be accommodated, and asking him to provide medical documentation to the Medical Centre.
4The respondents submit that a consideration of all the factors referred to in Persaud support their Request: the corporate respondent is prepared to accept any potential liability on behalf of the personal respondent; it can respond to and remedy the applicant’s complaints if the allegations are proven; there is no compelling reason to continue proceedings against the personal respondent who