HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Samuel Marino
Applicant
-and-
St. Thomas General Hospital
Respondent
interim decision
Adjudicator: Keith Brennenstuhl
Indexed as: Marino v. St. Thomas General Hospital
1The applicant filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in the area of employment on the basis of family status and reprisal.
2This Interim Decision addresses the Request for Order during Proceeding (the “Request”) filed by the respondents seeking an order removing Laura Pavilonis.as a respondent.
3The applicant has not responded to the Request.
BACKGROUND
4The respondent Hospital (the “Hospital”) is a public hospital located at St. Thomas, Ontario.
5The respondent Laura Pavilonis was at all material times employed by the Hospital as its Director of People Development.
6The applicant was at all material times employed by the Hospital as a Labour Relations Specialist.
7The applicant pleads that the respondents discriminated against him by unilaterally altering his employment contract such that he was unable to meet his family obligations which amounted to a failure to accommodate on the basis of family status and also by terminating him from his employment for having requested a parental leave.
8The respondents deny the allegations of discrimination. They assert that the termination of the applicant was made on a just cause basis as that standard is applied in the context of a probationary employee.
ANALYSIS & DECISION
9Rule 1.7(b) 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:
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.
10The 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 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.
11In my view the first three factors set out in Persaud are met. There is no issue of the Hospital’s ability to remedy any human rights violation found, both financial and through organizational changes, if ordered by the Tribunal. The Hospital acknowledges, that Ms. Pavilonis was acting within the course of her employment and that the Hospital is responsible for the conduct of Ms. Pavilonis should a Code violation be found.
12In my view, the Hospital is in the best possible position to remedy the kind of discrimination alleged by the applicant. The role of the Tribunal is to ensure a fair, just and expeditious process for bringing this Application to a final conclusion. In my view, these important objectives can be met by removing Ms. Pavilonis as a respondent. The applicant’s right to a full hearing on the merits will not be affected and the full range of remedial orders will be available as against the Hospital if the Application is successful. Under these circumstances, I see no compelling reason in proceeding against Ms. Pavilonis.
ORDER
13Ms. Pavilonis is removed as a respondent to the Application and the style of cause amended accordingly.
14I am not seized.
Dated at Toronto, this 14^th^ day of February, 2012.
“signed by”
Keith Brennenstuhl
Vice-chair