HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lydia Clarke
Applicant
-and-
Retirement Life Communities Consulting Inc.
Respondent
INTERIM decision
Adjudicator: Ian R. Mackenzie
Indexed as: Clarke v. Retirement Life Communities Consulting Inc.
wRITTEN SUBMISSIONS
Lydia Clarke, Applicant ) Self-represented
Retirement Life Communities Consulting ) M. Christopher Diamond, Counsel
Inc. and Stephen Grosfield, Respondents )
1Lydia Clarke has 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 employment on the basis of disability, race, colour, creed and reprisal or threat of reprisal. This Interim Decision addresses the respondents’ request to remove a personal respondent.
2The respondents also submitted that the requested remedies in the Application are inappropriate. This objection is premature. This issue is best left to be determined by the adjudicator assigned to hear the Application.
3The applicant named Palisades on the Glen, a retirement home in Mississauga, Ontario, as the corporate respondent. In the Response to the Application, the respondents stated that Palisades on the Glen is operated by Retirement Life Communities Consulting Inc. The style of cause has been amended accordingly.
4The applicant has also named Stephen Grosfield as a respondent. Mr. Grosfield is the Managing Director of Palisades on the Glen.
5The applicant has alleged that she has been discriminated against in pre-employment testing, in rate of pay, overtime, hours of work, scheduling, in the denial of a training opportunity and in her termination of employment.
Removal of Personal Respondent
6The respondents submitted that it was appropriate for the Tribunal to remove Mr. Grosfield as a personal respondent. The corporate respondent is alleged to be liable for the same conduct as Mr. Grosfield and the corporate respondent accepts its deemed vicarious liability for him under the Code. The corporate respondent is capable of responding to the allegations and of satisfying any remedial order requested by the applicant or that the Tribunal may order. There are no allegations against him or remedies sought against him personally. Therefore the applicant will suffer no prejudice from his removal as a respondent.
7The applicant did file a Reply to the Response, but did not address the request to remove the personal respondent.
8The 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 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 is 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.
9It is clear from the Application and the Response that Mr. Grosfield was acting in the course of his employment. The corporate respondent has accepted vicarious liability for his actions. The remedy being sought is a monetary one and it is within the capacity of the corporate respondent to fulfill any remedy awarded. There is no allegation of harassment against Mr. Grosfield. I find that it is not necessary to involve Mr. Grosfield as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
10Accordingly, Mr. Grosfield will be removed as a respondent and the style of cause is amended accordingly.
11The Tribunal makes the following orders:
a. the style of cause is amended to change the corporate respondent to Retirement Life Communities Consulting Inc.;
b. Stephen Grosfield is removed as a respondent; and
c. The objection of the respondent relating to the requested remedies is deferred until the hearing.
12I am not seized.
Dated at Toronto, this 16^th^ day of January, 2012.
“Signed by”
Ian R. Mackenzie
Vice-chair