HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sarah Camacho
Applicant
-and-
Financial Planning Standards Council
Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Camacho v. Financial Planning Standards Council
WRITTEN SUBMISSIONS
Sarah Camacho, Applicant
Self-represented
Financial Planning Standards Council, Respondent
Erik Marshall, Counsel
1This is an Application filed January 26, 2012, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of disability, sex and family status. This Interim Decision addresses a request to remove the personal respondent.
BACKGROUND
2The applicant alleges that she experienced discrimination when she was terminated from her employment with the organizational respondent. The applicant alleges that the personal respondent ("VP, Operations Department") and members of senior management of the organizational respondent discriminated against her because she had a child; was on parental leave and was of child bearing age and potentially could have more children; and because she had a medical problem following the delivery of her child.
3With respect to the role of the personal respondent, the applicant alleges that the personal respondent was present in the meeting (along with an "HR consultant") when she was terminated, explained to the applicant that her termination was due to restructuring in the department, and addressed the applicant's question about the reason for termination by stating that it was just business and had nothing to do with her job performance. Further, the applicant states that she told her supervisor about a medical problem relating to a pregnancy and believes that her supervisor told the personal respondent and the senior management team which she alleges they "may have assumed" meant she was trying to have more children which could have been "another reason" for her dismissal.
4On March 12, 2012, the respondents filed a joint Response and a Request for Order During Proceeding seeking an order removing the personal respondent ("the Request"). In support of their Request, the respondents argue that, there is a corporate respondent that is also alleged to be liable for the same conduct, there is no suggestion that the individual respondent was acting outside of her employment, the organizational respondent has assumed responsibility for her conduct and there is no issue as to the ability of the organizational respondent to respond to or remedy the alleged Code infringement.
5The applicant filed a Reply to the Response and Request. In her Reply the applicant states that the allegations in the Application, if proven, could indicate that the personal respondent was a decision-maker in the termination of the applicant's employment and that the termination of her employment was a violation of the Code. As such, the applicant argues the personal respondent should not be removed as a party. The applicant also relies on her belief that the personal respondent acted in a discriminatory manner in the past, although she does not provide particulars of this allegation in her submissions.
6In Persuad v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of "non-exhaustive" factors in considering 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.
7Applying the factors in Persuad and other decisions of the Tribunal, I find it appropriate to remove the personal respondent. I agree with the respondents that there is no suggestion that the personal respondent was not acting in the course of her employment. Further, the organizational respondent has accepted liability for the actions of the personal respondent and there is no issue of the ability of the organization respondent to respond to or remedy the infringement if a violation is found. In fact, it does not appear that the applicant is seeking any specific remedy from the personal respondent.
8While the personal respondent was present at the termination meeting and provided an explanation to the applicant of why she was being terminated, I do not find that this allegation alone justifies her inclusion as a party. The personal respondent may be a necessary witness but I do not find it necessary that she be a party in order to have a fair, just and expeditious resolution of the merits of the Application.
9The respondents' request to remove the individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
10I am not seized of this matter.
Dated at Toronto, this 2th day of August, 2012.
"Signed by"
Kathleen Martin
Vice-chair