HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lily Jagdeo
Applicant
-and-
Staples Advantage and Deborah Nicol
Respondents
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Jagdeo v. Staples Advantage
1The purpose of this Interim Decision is to address the respondents’ requests (1) to remove individual respondents named in the Application and (2) for an order requiring the applicant to produce medical documents.
2The applicant filed this Application on February 4, 2011, alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Her Application named three individual respondents and her employer, Staples Advantage (“Staples”).
3After the Notice of Mediation was sent out, the respondents filed a Request for Order During Proceedings (“RFOP”) on August 18, 2011, requesting the removal of the three individual respondents. A subsequent RFOP was filed on August 26, 2011, requesting production of medical information.
4The applicant did not respond to either RFOP at the time, and the matter proceeded to mediation. After the mediation failed to resolve the issues between the parties, the applicant was directed in a Case Assessment Direction, dated December 7, 2011, to provide submissions on the two requests. The applicant submitted a Response to the RFOP to remove the individual respondents, but not to the RFOP for production of medical documents.
DECISION AND ANALYSIS
Request to remove individual respondents
5Rule 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.
6The 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 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.
7The applicant names three individual respondents in her Application: Deborah Nicol, Shannon Young and Silvana Butrico. Ms Nichol was a supervisor of the applicant and figures prominently in the allegations at paragraphs 15-22 in section 8 of her Application.
8Ms Young and Ms Butrico were both managers in Human Resources. The only allegation against Ms Young is that she passed the applicant over for promotion in “the latter part of 2006.” The allegation against Ms Butrico is that she was aware that Ms Nicol had passed her over “for promotional opportunity because of the [the applicant’s] accent,” but did nothing to correct the situation. It is not entirely clear from the dates, but it would appear that Ms Butrico’s alleged failure to act took place in or around December 2009.
9In the request to remove the individual respondents, Staples submits that it is able to respond to and remedy the alleged infringements, and accepts that it is liable for the acts of the individual respondents, all of whom it submits were acting within the scope of their employment. The respondents further submit that there is no compelling reason to continue against the three individuals and removing them as respondents would not result in any prejudice to the applicant.
10The applicant asserts in response that the conduct of the three individual respondents is central to her allegations, although she does not state why this is so. Indeed, she does not refer to any of the individuals or discuss the specific allegations against them in her submissions on the issue.
11With respect to Ms Young, the allegation against her dates back to 2006, and so it is not even clear that it is timely. There is no specific assertion that links Ms Young’s conduct with a ground under the Code. Similarly, the assertion against Ms Butrico is not that she engaged in discriminatory conduct herself, but that she failed to do anything about it when an incident was reported to her. While ultimately the conduct of both individuals might be found to have contributed to the alleged discrimination the applicant faced, it cannot be seen as “central” to the allegations.
12However, on the face of the Application, it is apparent that Ms Nicol’s role with respect to the alleged discriminatory treatment is central. Moreover, the applicant is seeking a specific remedy against her, which is another reason for maintaining her as an individual respondent.
13For all of these reasons, the respondent’s Request is denied with respect to Ms Nicol and granted with respect to the remaining two individual respondents. Shannon Young and Silvana Butrico are removed as parties to this proceeding and the style of cause amended accordingly.
Production
14Although framed as a request for particulars as well as a request for production, a review of the RFOP suggests that it is merely a request for production of the applicant’s “medical reports or documents.” As noted above, the applicant has taken no position with respect to this request.
15Rule 16 of the Tribunal’s current Rules of Procedure sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.
16Under the new Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent. The respondents have not identified any exceptional circumstances in this case.
17The respondents’ request for production at this stage is denied as premature.
ORDER
18In summary, I have made the following orders:
a. Shannon Young and Silvana Butrico are removed as parties to this proceeding and the style of cause amended accordingly; and
b. The respondents’ Request for production is denied.
19I am not seized of this matter.
Dated at Toronto, this 7th day of February, 2012.
“Signed by”
Naomi Overend
Vice-chair