Crump v. Victoria County Career Services, 2012 HRTO 1803

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Crump

Applicant

-and-

Victoria County Career Services

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 20, 2012

Citation: 2012 HRTO 1803

Indexed as: Crump v. Victoria County Career Services

1In this Application, filed on August 24, 2011 under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent, his former employer, discriminated against him on the basis of disability with respect to employment and reprised against him, contrary to the Code. The Application is largely based on the applicant’s alleged interactions with his immediate supervisor, the Executive Director of the respondent, Carol Timlin.

2On August 20, 2012, the applicant filed a Request for an Order during Proceedings seeking to have Ms Timlin added as a personal respondent to the Application (“the Request”). The applicant seeks to have Ms Timlin added as a party to the proceeding in order to preempt any argument by the organizational respondent that it is not liable for any alleged discrimination against the applicant because Ms Timlin was acting in a personal, as opposed to professional, capacity in her dealings with him.

3The respondent opposes the applicant’s Request. Ms Timlin has not filed a response to the Request.

WHETHER TO ADD PERSONAL RESPONDENT

4Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party to an Application. 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 46.3(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:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. 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.

6At the time he filed the Request, the applicant was clearly apprehensive that the respondent would seek to avoid liability under the Code by arguing that it was not responsible for Ms Timlin’s actions. However, based on the response to the Request, it is clear that this is not the case. On the contrary, the respondent submits, and I agree, that there is nothing to suggest that Ms Timlin was acting in anything other than the course of her employment as the Executive Director of the respondent in her dealings with the applicant. Accordingly, I agree with the respondent that, if the Tribunal were to find that Ms Timlin did or omitted to do anything that constituted discrimination against the applicant, then the respondent would be liable for such conduct pursuant to s.46.3(1) of the Code. There is no allegation that the respondent would be unable to remedy any infringement of the applicant’s rights under the Code that is found to have occurred as a result of Ms Timlin’s conduct.

7In the circumstances, I am not persuaded that there is a compelling reason to add Ms Timlin as a personal respondent to the Application. It is not necessary to make Ms Timlin a party to the proceeding in order to have a fair, just and expeditious resolution of the Application. The applicant’s Request is denied.

ORDER

1. The applicant’s request to add Carol Timlin as a personal respondent to the Application is denied.