HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Siphathisiwe Patty Moyo
Applicant
-and-
York University
Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Moyo v. York University
WRITTEN SUBMISSIONS
Siphathisiwe Patty Moyo, Applicant ) No submissions
Janet Morrison, Dianne McCauley, ) Joanna Rainbow, Counsel and Shadell Permanand, Respondents )
York University, Respondent ) No separate submissions
INTRODUCTION
1The purpose of this Interim Decision is to address the personal respondents’ request to remove them as parties to this Application and the request to add York University as the sole respondent.
BACKGROUND
2The Application was filed on January 7, 2010, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in services on the basis of race.
3The alleged discrimination relates to a verbal dispute between the applicant and another student at the university on November 10, 2009, when the applicant alleges that the other student made a discriminatory remark. The applicant alleges that Janet Morrison passed by during the dispute and the applicant alleges that Ms. Morrison imposed academic consequences on her, but did not punish the other student. She alleges that Dianne McCauley is the program coordinator who receives orders from Ms. Morrison and who has removed her from classes without meeting with her to discuss the matter. She alleges that Shadell Permanand was asked to investigate the situation, but that she simply acted in a manner which would please Ms. Morrison, and that the issue is driven by race. The applicant seeks a financial remedy, she seeks to have a university tribunal regarding the matter cancelled and she seeks education and discipline of university staff.
4The personal respondents have filed a Response, denying discrimination. In their Response, they have identified Janet Morrison as the Executive Officer in the Faculty of Health at York University; Dianne McCauley as a full-time faculty member who is also Director of the Undergraduate Program in the School of Nursing; and Shadell Permanand as the Director of the Office of Student Conduct & Dispute Resolution. They allege that Janet Morrison has no reporting obligations or any oversight function toward any of the other personally-named respondents.
5The personal respondents have filed a Request for Order During Proceedings (“RFOP”) in which they request that their employer York University be named as a respondent and they be removed as respondents to this proceeding. The RFOP was filed by counsel to the respondents and to York University. The respondents submit that York University should be the respondent, as they were acting within or consistently with the scope of their duties as employees of York University. They also submit that they should be removed as respondents as they were acting within or consistently with the scope of their duties as employees.
6There are no separate submissions made by York University, but as noted above, the RFOP was filed on behalf of the respondents by counsel identifying herself as counsel for the respondents and for York University.
7No submissions have been received from the applicant regarding the Request to add York University as a respondent or the Request to remove the personal respondents.
Request to Add a Respondent
8Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party.
9The Code states that 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”: subsection 46(3). As noted above, the personal respondents take the position that they were acting in the course of their employment with York University and neither the applicant nor York University has objected to being named as a respondent. In fact, given the fact that counsel for York University filed the RFOP, it can be concluded that York University supports the Request. It is therefore appropriate to add York University as a respondent. The style of cause is amended accordingly.
Request to Remove Individual Respondents
10The Tribunal has provided the following non-exhaustive list of factors to assist in the assessment of whether a personal respondent should be removed (Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5):
Is there a corporate respondent in the proceeding that is also 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 fi 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.
11The personal respondents submit that they were acting in the course of their employment. With the addition of York University as a party, they submit there is a corporate respondent alleged to be liable for the same conduct, York University has not objected to being named a respondent and there is no issue as to their deemed or vicarious liability for the conduct of the personal respondents who seek to be removed. They submit that there is no issue as to York University’s ability to respond or to remedy the alleged Code infringement. Without commenting on the appropriateness of the remedies sought, I find that certain of the remedies could only be provided by York University. Finally, the applicant has made no submissions regarding this issue, or regarding prejudice to her if the personal respondents were removed and replaced by York University as a respondent, and no prejudice to her is apparent. I find that it is not necessary to involve the personal respondents as respondents in this matter in order to have a fair, just and expeditious resolution of the merits of the Application.
12The request to remove the personal respondents as respondents to the Application is therefore granted. The style of cause is amended accordingly.
13I am not seized.
Dated at Toronto, this 24th day of April, 2012.
“Signed by”
Maureen Doyle
Vice-chair