HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Christine Robus
Applicant
-and-
Independent Living Services
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Robus v. Independent Living Services
WRITTEN SUBMISSIONS
Christine Robus, Applicant
Doug MacLeod, Counsel
Independent Living Services, Dan McGale and Dianne Reynolds, Respondents
Joseph N. Tascona, Counsel
Introduction
1The purpose of this Interim Decision is to address the respondents request to remove two individuals as parties to this Application.
BACKGROUND
2The Application alleges discrimination in employment on the basis of disability. In addition to the corporate respondent, Independent Living Services, the applicant named as respondents her supervisor and the Executive Director of Independent Living Services.
3The applicant alleges that she is an alcoholic and that her supervisor and the corporate respondent were aware of her disability. The applicant alleges that she was suspended because her supervisor suspected that she was drinking during working hours. In addition, the applicant alleges that she was terminated contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as the corporate respondent took into account her disability in deciding to terminate her employment. The applicant was terminated by the Executive Director of the corporate respondent. The applicant seeks damages from the corporate respondent and both personal respondents.
Request to Remove the Personal Respondents
4Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. 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 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.
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:
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.
6The respondents filed a Request seeking removal of the personal respondents as parties to this Application. The respondents submitted that there was no compelling juridical reason to include the personal respondents. They stated that there was no allegation that either of the personal respondents was acting outside the scope of their employment. The respondents also stated that the applicant failed to identify any prejudice or concerns regarding the corporate respondent’s ability to remedy any potential Code violations. The applicant did not respond to the respondents’ Request.
7On October 23, 2012, the Tribunal issued a Case Assessment Direction directing the corporate respondent to confirm that: it accepts that the personal respondents were acting in the course of their employment at all relevant times; it accepts liability for any Code violations by the personal respondents; and there is no issue as to its ability to respond to or remedy any Code violation including any violations by the personal respondents. By letter dated October 24, 2012, the corporate respondent confirmed each of the three points set out in the Tribunal’s Case Assessment Direction. The applicant made no submissions in response to the Case Assessment Direction.
8Applying the factors set out in Persaud, I find that the personal respondents should be removed. The corporate respondent has accepted that these individuals were acting within the scope of their employment duties and there is no basis in the Application to suggest otherwise. The corporate respondent has also accepted liability for any violations of the Code and confirmed that there is no issue as to its ability to respond