Scharf v. 1507952 Ontario Inc., 2012 HRTO 900

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Scharf

Applicant

-and-

1507952 Ontario Inc. c.o.b. Hilton Garden Inn Kitchener/Cambridge and Sunny Hospitality

Respondents

INTERIM DECISION

Adjudicator: Alan G. Smith Date: May 7, 2012 Citation: 2012 HRTO 900 Indexed as: Scharf v. 1507952 Ontario Inc.

WRITTEN SUBMISSIONS

1507952 Ontario Inc. c.o.b. ) Hilton Garden Inn, Kitchener ) Robert W. Scriven, Representative Cambridge and Sunny Hospitality ) and Brian Benton, Respondents )

BACKGROUND

1The applicant filed an Application on August 4, 2011, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) in which she alleges discrimination on the basis of sex in the context of employment as well as reprisal by the respondent employer.

2In essence, the Application alleges that the respondents unlawfully terminated her employment because of her gender and as a Code-related reprisal. The Application named as respondents both the corporate employer, the holding company which owns the franchise rights to operate the hotel where the applicant was employed, and an individual, Brian Benton, who was the applicant’s supervisor.

3The respondents filed a Response on September 30, 2011. The applicant filed a reply on October 27, 2011.

4On April 4, 2012, the respondents filed a Request For Order During Proceedings (“Request”) asking for the removal of the personal respondent from the Application.

5In the Form 10 the respondents argue that:

a) The personal respondent was acting within the scope of his employment and his authority as manager of the applicant’s department with respect to the events complained of by the applicant;

b) The corporate respondents 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;

6Pursuant to Tribunal Rule 19.6 the applicant had until April 19, 2012, to file a response to the Request. As of this date, nothing has been received from the applicant.

ANALYSIS

7Rule 1.7(b) of the Tribunal’s Rules 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.

8The 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:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. 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 application.

9I find that all five factors from the Persaud test have been met in this matter. The applicant has not made any allegations against the personal respondent personally which fall outside the scope of his employment as the applicant’s supervisor. The Application’s central allegation concerns a remark made by another employee who is not named as a party. The personal respondent is not alleged to have been present when this comment was made and is also not alleged to have had knowledge of it at the time . 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 respondent, and there is no issue of the corporate 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. See Macdonald v. Toronto District School Board, 2010 HRTO 402 and Doucette v. Toronto Transit Commission 2011 HRTO 2072.

ORDER

10The personal respondent is removed from the Application. The style of cause is amended accordingly.

11The two day hearing scheduled for November 13 and 14, 2012, to decide the Application on its merits, will proceed.

12I am not seized.