HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zanobia Chaudhary
Applicant
-and-
2063849 Ontario Inc. – Hotel Indigo Toronto Airport
Respondent
Interim Decision
Adjudicator: Ena Chadha
Indexed as: Chaudhary v. 2063849 Ontario Inc.
WRITTEN SUBMISSIONS
2063849 Ontario Inc. – Hotel Indigo Toronto Airport and Sim Gill, Respondents
Robert W. Scriven, Counsel
1This Application was filed on 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 with respect to employment on the basis of disability, sex and marital status. The Application was filed against the applicant's employer, the corporate respondent, and Sim Gill, identified as one of the owners of the corporate respondent.
2The respondents filed their Response on April 2, 2012.
3On September 14, 2012, the respondents filed a Request for an Order During Proceedings ("Request") asking that the Tribunal remove the individual respondent, Sim Gill, as a party to the Application. The respondents submit that corporate respondent is prepared to respond to the Application and accepts liability, if any is found to exist, in regards to Mr. Gill. The respondents argue that the bulk of the applicant's allegations relate to another individual, former General Manager, who is not named in the Application and that the applicant's allegations against Mr. Gill are ancillary to the allegations against the former General Manager.
4The applicant did not file submissions in response to the respondents' Request to remove Sim Gill as an individual respondent and the time for doing so has elapsed.
DECISION
5Rule 1.7(b) of the Tribunal's Rules of Procedures provides that the Tribunal may add or remove a party.
6The Tribunal considers the following factors as set out in *Persaud v. Toronto District School Board*, 2008 HRTO 31, at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:
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?
7With respect to the above-noted fourth factor, the Tribunal generally considers 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 Application.
8Having carefully reviewed the Application, it appears that the majority of the applicant's allegations against the individual respondent, Sim Gill, relate to his comments and conduct in his managerial role with the corporate respondent. The applicant alleges that, despite repeated correspondence and communications expressing her concerns about harassment by the former General Manager, the individual respondent failed to address the situation and did not provide her with adequate support. The applicant alleges that individual respondent deflected her concerns and told her to learn to deal with the former General Manager.
9I find that the Persaud factors favour removal of the individual respondent. The corporate respondent indicates that it is prepared to fully defend against the Application on behalf of the individual respondent and accepts liability, if any found, for the individual respondent's alleged conduct. The remedial relief sought by the applicant are entirely monetary. As such, there does not appear to be any concern with respect to the corporate respondent's ability to continue to respond to the Application and to satisfy any remedies if ordered.
10The applicant has not filed any submissions opposing removal of the individual respondent and there does not appear to be any prejudice to the applicant to if the Request is granted. I accept the respondents' submissions that there does not appear to be any compelling basis to continue the Application as against the individual respondent.
11Having regard to the Tribunal's jurisprudence on this issue, I find it appropriate to remove the individual respondent.
12The respondents' request to remove the individual respondent as party to the Application is therefore granted. The style of cause is amended accordingly.
13I am not seized of this matter.
Dated at Toronto, this 11th day of October, 2012.
"Signed by"
Ena Chadha
Vice-chair