HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deborah Fay
Applicant
-and-
Independent Living Services of Simcoe County & Area
Respondent
INTERIM DECISION
Adjudicator: Sheri D. Price
Indexed as: Fay v. Independent Living Services
1In this Application, filed on December 28, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondent employer discriminated against her because of disability with respect to employment. In particular, among other things, the applicant alleges that the respondent discriminated against her by denying her a flexible work schedule that the applicant allegedly needed because of her disability; and by later terminating her employment.
2In addition to naming her former employer, Independent Living Services of Simcoe County & Area (“Independent Living Services”), as a respondent to the Application, the applicant also named the corporation’s Executive Director, Dan McGale, and Dianne Reynolds, the corporation’s Manager of Support Services, as personal respondents to the Application.
3This Interim Decision addresses a Request for an Order during Proceedings filed on behalf of Independent Living Services, Mr. McGale and Ms. Reynolds, seeking to have Mr. McGale and Ms. Reynolds removed as parties to the proceeding (“the Request”) on the basis that Independent Living Services, a corporation, is liable for Mr. McGale’s and Ms. Reynolds’s alleged conduct and is in a position to remedy any infringement of the applicant’s rights under the Code that is found to have occurred as a result of their conduct.
4The applicant opposes the Request.
5Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party to an Application. 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 46.3(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.
6The 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.
7In this case, I am satisfied that it is appropriate to remove both Mr. McGale and Ms. Reynolds as personal respondents to the Application.
8The applicant maintains that, as members of “upper management” of Independent Living Services, both Mr. McGale and Ms. Reynolds were responsible for ensuring that her disability-related needs were accommodated. That may be. In my view, however, that is not a compelling juridical reason to maintain Mr. McGale or Ms. Reynolds as personal respondents to the Application.
9In this case, there is no suggestion that Mr. McGale and/or Ms. Reynolds acted outside of the course of their employment with the corporation, Independent Living Services, in their dealings with the applicant. Accordingly, Independent Living Services is vicariously liable for Mr. McGale’s and Ms. Reynold’s conduct pursuant to s.46.3(1) of the Code. Moreover, the applicant does not dispute the corporate respondent’s submission that it is able to remedy any infringement of the applicant’s rights under the Code that is found to have occurred as a result of Mr. McGale’s and/or Ms. Reynold’s conduct. Against that backdrop, I cannot see how the applicant would be prejudiced by the removal of the personal respondents as parties to the proceeding.
10There is also no compelling reason to maintain Mr. McGale and/or Ms. Reynolds as personal respondents to the Application. In coming to this conclusion, I have considered the fact that the Application contains a number of allegations that Ms. Reynolds mistreated the applicant when the applicant told her that she was unable to continue working her schedule at the time because she had fibromyalgia. The applicant alleges that when she gave a doctor’s note to Ms. Reynolds, Ms. Reynolds became “very irate”, threw it on the table and said “in a very loud voice”, “You’re telling me that you were totally disabled last week.” At another time, the applicant alleges that Ms. Reynolds told the applicant in a sarcastic tone of voice that her options were to either work the schedule that the respondent had made for her or to go “on call” and work when she “felt like it”.
11In my view, these allegations are not the sort of allegations that make it necessary to maintain Ms. Reynolds as a personal respondent to the Application. In essence, the applicant alleges that Ms. Reynolds, acting on behalf of her employer, challenged the applicant’s claim that she needed a particular form of accommodation and ultimately denied the requested accommodation. This is the sort of allegation that, if proved, could result in a finding that the applicant’s employer, Independent Living Services, discriminated against the applicant because of disability (subject to the applicant making out a prima facie case of discrimination under the Code: Baber v. York Region District School Board, 2011 HRTO 213 at para. 88 to 95). However, in my view, it is not the sort of allegation that, if proved, might lead the Tribunal to award a remedy specifically against Ms. Reynolds.
12Nor is the allegation that Mr. McGale did not take steps to ensure that the employer, Independent Living Services, fulfilled its duty to accommodate the applicant’s disability-related needs the sort of allegation that, if proved, would attract personal liability under the Code.
13For all of the above reasons, I find it appropriate to remove the personal respondents as parties to the proceeding.
ORDERS/DIRECTIONS
- Dan McGale and Dianne Reynolds are removed as respondents to the Application and the style of cause amended accordingly.
Dated at Toronto, this 7th day of October, 2013.
“Signed by”
Sheri D. Price
Vice-chair