Jason Tang v. McMaster University, 2012 HRTO 2083

Human Rights Tribunal of Ontario

B E T W E E N:

Jason Tang

Applicant

-and-

McMaster University; Faculty of Health Sciences, McMaster University;

Centre for Student Development, McMaster University;

Medical Sciences Graduate Program, McMaster University

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: November 1, 2012

Citation: 2012 HRTO 2083

Indexed as: Tang v. McMaster University

WRITTEN SUBMISSIONS

Jason Tang, Applicant

Laurie Letheren, Counsel

McMaster University; Faculty of Health Sciences, McMaster University; Centre for Student Development, McMaster University; Medical Sciences Graduate Program, McMaster University, Respondents

George Avraam, Counsel

1This is an Application filed 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 services on the basis of disability. This Interim Decision addresses the respondents’ request to remove the named personal respondent, Martin Stampfli.

2The respondents filed their Request for an Order During Proceedings (RFOP) to remove the personal respondent on October 11, 2012. The applicant filed his Response to the RFOP on October 19, 2012, indicating that he took no position on the respondents’ request.

3Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In assessing the respondent’s request, I have adopted the principles and considered the key factors for removing personal respondents that were enunciated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31. In Sigrist the Tribunal stated:

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. (para 42)

4In Persaud the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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 [is] 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? (para 5)

5The respondents’ RFOP has addressed, in turn, each of the factors outlined above. It submits that the McMaster University, as one of the named corporate respondents, is alleged to be liable for same the conduct as the personal respondent and that the personal respondent’s actions are clearly by and on behalf of McMaster University. It submits that McMaster University has expressly assumed vicarious liability for the conduct of the personal respondent and that the Application has not raised issues as to McMaster University’s deemed or vicarious liability. It submits that McMaster University can respond to or remedy any alleged Code infringements. It submits there are no compelling reasons to proceed against the personal respondent as every one of the actions that the Application alleges that the personal respondent performed were performed in the course of his employment. It submits that there are no factors that would make it appropriate to award a remedy against the personal respondent. It submits that the removal of the personal respondent would result in actual or potential prejudice.

6As noted, the applicant takes no position on the respondents’ request.

7On my review of the submissions and the information before me, including the applicant’s allegations and requested remedies, I am of the view that the personal respondent should be removed from this proceeding. In my view, there is no allegation relating to the personal respondent’s that are likely to give rise to a finding that he personally violated the Code. I see no prejudice to the applicant’s ability to proceed with his Application and receive a remedy if an infringement of the Code is established. Martin Stampfli is, therefore, removed as a respondent and the style of cause is amended accordingly.

8I am not seized of this matter