HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Joyce Owbola A. Tanimowo–Reyes
Applicant
-and-
TD Insurance (Meloche Monnex)
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: Tanimowo – Reyes v. TD Insurance (Meloche Monnex)
WRITTEN SUBMISSIONS
Joyce Owbola A. Tanimowo–Reyes, ) Fola Adekusibe, Counsel Applicant )
TD Insurance (Meloche Monnex), ) Susy Michor, Mary Stewart, Laurie Cuda, ) Stephen Dorrell, Representative Colleen Giles, William Goings and ) Ken Laliberte,Respondents )
BACKGROUND
1This Application, filed January 17, 2011, alleges discrimination in employment by the respondent on the grounds of race, colour, place or origin, citizenship, ethnic origin, disability, family status, and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She also alleges reprisals contrary to the Code.
2The respondents filed a Response on June 21, 2011, and on December 8, 2011, also filed a Request for Order During Proceedings (Tribunal Form 10) requesting removal of the personal respondents from the Application. The personal respondents are all employees of the corporate respondent. This Interim Decision deals with that Request.
3The Form 10 included the following admission on the part of the corporate respondent, “…there is no issue as to the liability of TD, the corporate respondent, to respond to or remedy the alleged Code infringement”.
4The applicant filed a Reply to the Request on December 20, 2011, in which the Applicant consented to the Request on the following conditions:
subject to the Institutional Respondent giving an undertaking to accept vicarious liability for the actions of the personal respondents and to call them as witnesses should the Application proceed to a hearing…
The institutional respondent accepts vicarious liability for the actions of the personal respondents acting within the scope of their authority, pursuant to s. 46.3 of the Code and the institutional respondent agrees that the personal respondents would be called as witnesses should the Application proceed to a hearing.
ANALYSIS
5Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may, in order to provide for the fair, just and expeditious resolution of any matter before it, 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 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.
7Section 46(3) of the Code provides:
- For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation…shall be deemed to be an act or thing done or omitted to be done by the corporation…
8The provisions of s. 46 (3) of the Code are mandatory. Moreover, in the present case corporate respondent has acknowledged its potential vicarious liability for the acts of its employees.
9I find, therefore, that all five parts of the Persaud test have been met in this matter. There is a corporate respondent who is alleged to be liable for the same conduct, it has accepted vicarious liability for the actions of the personal respondents, and there is no issue of the institutional respondent’s ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. There is no basis for me to conclude that there is any prejudice to the applicant’s ability to proceed with a hearing of this matter and receive an adequate remedy if an infringement of the Code is established. From an evidential standpoint, if the personal respondents are not called as witnesses in the Tribunal hearing by the respondent it is open to the applicant to summon them to a hearing. See Macdonald v. Toronto District School Board, 2010 HRTO 402 and Dixon v. Mississauga Transit, 2011 HRTO 679.
ORDER
10The personal respondents are removed from the Application and the style of cause is amended accordingly.
11The parties are reminded that Tribunal Rule 17 makes it mandatory to disclose the names of witness a party intends to call 45 days prior to the first scheduled day of hearing. If the applicant is not satisfied with the respondent’s anticipated witnesses she may summon them pursuant to Tribunal Rule 3 and request an abridgement of the 45 day deadline in accordance with Tribunal Rule 1.7 a).
12The Application shall proceed to a hearing on the merits as scheduled.
13I am not seized.
Dated at Toronto, this 16th day of February, 2012.
“Signed by”
Alan G. Smith
Member