HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Regina (Nikki) Nicole Ferguson
Applicant
-and-
StarTek Inc.
Respondent
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Ferguson v. StarTek Inc.
WRITTEN SUBMISSIONS
Regina (Nikki) Nicole Ferguson, Applicant
Self-represented
StarTek Inc., Respondent
Colin Youngman, 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 with respect to employment because of family status. The purpose of this Interim Decision is to deal with a request to remove the personally named respondents in this Application.
2Rule 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.
3The 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 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.
4Counsel for StarTek Inc., who also represents Katrina Raaflaub, Trevor Lemandeau, Lisa Hicks, Amanda Kirkpatrick and Nicole Smith, filed a request for order seeking removal of those personally named respondents. The Tribunal is in receipt of earlier correspondence indicating that the final personally named respondent, Andrew McCallister, is no longer employed by the corporate respondent and is not represented by counsel for StarTek Inc..
5The Tribunal requested that the applicant provide an address for service of the Application to Andrew McCallister and in her Reply, the applicant made the following comment:
At this time I would also like to have Andew (sic) McCallister removed as a personal respondent, as the others have requested and leave StarTec Inc. as the prime respondent. I do not have an alternate address for Mr. McCallister.
6It appears from the above statement that the applicant consents to the removal of all the personally named respondents. As such, it is not necessary for me to rule on whether the factors in Persaud favour removal of the personal respondents.
7The respondents’ request to remove Katrina Raaflaub, Trevor Lemandeau, Lisa Hicks, Amanda Kirkpatrick and Nicole Smith as individual respondents to the Application is therefore granted. Andrew McCallister is also removed as a respondent. The style of cause shall be amended accordingly.
8I am not seized of this matter.
Dated at Toronto, this 18th day of June, 2013.
“Signed by”
Jay Sengupta
Vice-chair