HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nazila Dehghani
Applicant
-and-
Zoe’s Bakery Café Ltd.
Respondent
INTERIM DECISION
Adjudicator: Sheri D. Price
Indexed as: Dehghani v. Zoe’s Bakery Café Ltd.
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 she was discriminated against with respect to employment because of her disability and reprised against, contrary to the Code.
2The Application was filed against Shawn Zolberg, the President of Zoe’s Bakery Café Ltd., where the applicant worked as a cook, and Andrea Kennedy, the kitchen manager.
3This Interim Decision addresses a Request for an Order during Proceedings, filed on behalf of Mr. Zolberg, Ms. Kennedy and Zoe’s Bakery Café Ltd., seeking to have Mr. Zolberg and Ms. Kennedy removed as personal respondents to the Application and Zoe’s Bakery Café Ltd. added as a respondent to the Application (“the Request”).
4The applicant has not responded to the Request and the deadline for doing so has now passed.
5Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party to an Application.
6In 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.
7The 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.
8In this case, the applicant claims that an officer and an employee of the corporation that employed her, i.e. Mr. Zolberg and Ms. Kennedy, respectively, did and/or omitted to do things that constituted discrimination and/or reprisal against her, contrary to the Code. There is no suggestion that Mr. Zolberg’s and/or Ms. Kennedy’s alleged actions and/or omissions were done in anything other than the course of their employment by the corporation, Zoe’s Bakery Café Ltd. Accordingly, if the Tribunal were to find that Mr. Zolberg and/or Ms. Kennedy did or omitted to do anything that constituted discrimination or reprisal against the applicant, then the corporation, Zoe’s Bakery Café Ltd., would be liable for such conduct pursuant to s.46.3(1) of the Code. In the circumstances, I agree with the respondents that it is appropriate to add Zoe’s Bakery Café Ltd. as a respondent to the Application.
9I also agree that Mr. Zolberg and Ms. Kennedy should be removed as personal respondents to the Application. There is no allegation that the corporate 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 Mr. Zolberg’s and/or Ms. Kennedy’s conduct towards the applicant. Moreover, the applicant has not opposed the removal of Mr. Zolberg and Ms Kennedy as personal respondents or indicated that she would be prejudiced in any way by their removal as parties to the proceeding. Nor can I see any other compelling reason to maintain Mr. Zolberg and/or Ms. Kennedy as personal respondents to the Application.
ORDERS
10The Tribunal makes the following orders:
Zoe’s Bakery Café Ltd. is added as a respondent to the Application.
Shawn Zolberg and Andrea Kennedy are removed as parties to the proceeding.
Dated at Toronto, this 24th day of September, 2012.
“signed by”
Sheri Price
Vice-chair