HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Laurie-Ann Marcelle Whitnall
Applicant
-and-
Jungbunzlauer Canada Inc. and Elaine Carpenter
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Whitnall v. Jungbunzlauer Canada Inc.
WRITTEN SUBMISSIONS
Laurie-Ann Marcelle Whitnall, Applicant
Self-represented
IntroductioN
1The purpose of this Interim Decision is to address the applicant’s request to add Sharon Grant as an individual respondent to this Application.
2The applicant made her request in a Request for an Order During Proceedings (RFOP) filed with the Tribunal on May 2, 2011. The respondents have not filed a Response to the RFOP and the time for doing so has now passed.
BACKGROUND
3Generally, the applicant has made a series of allegations that she was discriminated against in her employment due to her disability. Stated broadly, she alleges that she was not accommodated for her disability at work and she alleges that her termination from employment was due to her disability. By way of remedy, she seeks financial compensation.
Request to Add an Individual Respondent
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 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.
5The 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:
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 applicant submits that the proposed personal respondent, who was employed by the corporate respondent, should be named as a personal respondent to this Application because she had omitted the individual’s name in error and because the Application was “filed in the first place because of Sharon Grant’s actions.”
7In this case, the applicant has named her former employer as a respondent to the Application. It appears that she alleges that the corporate respondent is also liable for the same conduct for which she alleges Sharon Grant is liable.
8There has been no issue raised as to the corporate respondent’s deemed or vicarious liability for Sharon Grant.
9The remedies the applicant seeks appear to be framed according to employment-related losses she alleges she incurred and there does not appear to be any issue as to the ability of the corporate respondent to respond to or to remedy the alleged infringement of the Code.
10There is no apparent compelling reason to include Sharon Grant as an individual respondent and I note that the alleged actions of the proposed individual respondent relate to activities undertaken in the normal course of her duties such that her individual conduct is not a central issue. Additionally, the applicant has not specifically sought a remedy against her personally.
11I am aware of no prejudice which would result in not naming Sharon Grant as an individual respondent.
12In my view, considering all the circumstances, it is not necessary to involve Sharon Grant as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
13The applicant’s request to add Sharon Grant as an individual respondent to the Application is therefore denied.
14I am not seized of this matter.
Dated at Toronto, this 27th day of July, 2012.
Signed by
Maureen Doyle
Vice-chair