HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Impraim
Applicant
-and-
Costco Wholesale
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Decision Date: May 14, 2012
Indexed as: Impraim v. Costco Wholesale
WRITTEN SUBMISSIONS
Sandra Impraim, Applicant
Self-Represented
Costco Wholesale, Mohammed Javaid Respondents
Michael Horvat, Counsel
Introduction
1This is an Application filed 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 age.
2The purpose of this Interim Decision is to address the respondents’ Request to remove the individual respondent as a party to this Application.
BACKGROUND
3The applicant is employed as a full-time Optician at the corporate respondent. The individual respondent is the manager of the Optical Department at the corporate respondent at the premises where the applicant is employed.
4The applicant alleges that the individual respondent reviewed her performance and made comments which discriminated against her on the basis of age, she alleges that he harassed her in order to pressure her to retire, and she alleges that he assigned her duties and enforced workplace rules in a way which discriminated against her on the basis of age.
5The respondents deny any discrimination contrary to the Code.
Request to Remove the Individual Respondents
6Rule 1.7(b) of the Tribunal’s Rules of Procedure 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.
7The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), 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 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.
8The respondents submit that the individual respondent acted at all times within the scope of his employment as Optical Department Manager at the corporate respondent. They submit that, should it be found that the applicant was discriminated against in the course of her employment by the individual respondent, the corporate respondent, who is the employer, would be liable for any of the individual respondent’s conduct when he acted in the course of his employment. They submit that there is no compelling judicial reason for naming the individual respondent as a party to this Application, having regard to the factors enumerated in Persaud.
9The applicant submits that her Application is based upon the actions of the named individual respondent and that “he should be present”.
10I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve Mohammed Javaid as individual respondent in order to have a fair, just, and expeditious resolution of the merits of the Application.
11The respondents’ Request to remove Mohammed Javaid as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
12I am not seized of this matter.
Dated at Toronto, this 14th day of May, 2012.
”signed by”______________
Maureen Doyle
Vice-chair