B E T W E E N:

Penny Hepting

Applicant

-and-

Mary R. Di Salvo Financial Services Corporation and Mary R. Di Salvo

Respondents

Adjudicator: Sheri D. Price

Date: October 9, 2011

Citation: 2013 HRTO 1707

Indexed as: Hepting v. Mary R. Di Salvo Financial Services Corporation

Penny Hepting, Applicant ) Paul Linley, Counsel

Mary R. Di Salvo Financial Services ) Elizabeth Traynor, Counsel

Corporation and Mary R. Di Salvo, )

Respondents )

[8] In the Request, the respondents seek to have all of the applicant’s allegations concerning events that allegedly occurred prior to April 26, 2012 struck from the Application on the basis that they are not allegations that the applicant was harassed or discriminated against because of a prohibited ground under the Code. The respondents point out that the Tribunal has repeatedly held that it does not have jurisdiction to deal with general claims of unfair or even abusive treatment that is not based on a prohibited ground under the Code. The respondents submit that since the Tribunal’s jurisdiction is limited to determining whether a person’s rights under the Code have been infringed, it does not have jurisdiction to consider the allegations relating to events that allegedly occurred prior to April 26, 2012.

[9] In her response to the Request, the applicant submits that the allegations about what occurred in the workplace prior to April 26, 2012 are properly before the Tribunal as “factual background” to the alleged discriminatory events of April 26, 2012 onwards. In other words, it appears that the applicant is not seeking to put the incidents that predate April 26, 2012 forward as alleged incidents of discrimination and/or harassment in respect of which she seeks a remedy under the Code. Rather, the applicant seeks to put such incidents forward in order to “place the act of discrimination in context.”

12I now turn to the respondents’ request to have Mary R. Di Salvo removed as a party to the proceeding.

13Rule 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 et al, 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.

14The 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 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.

15In this case, the respondents submit that it is appropriate to remove the personal respondent as a party to the proceeding on the basis that the corporate respondent is vicariously liable for the actions of the personal respondent, and there is “no issue” with respect to the corporate respondent’s ability to respond to and/or remedy any infringement of the Code.

16The applicant opposes the Request to remove Ms. Di Salvo as a party to the proceeding on the basis that her discrimination claim is based entirely on the actions and conduct of the personal respondent, who is not only employed by the corporate respondent, but is also the President of the corporate respondent and its sole shareholder.

17In the circumstances of this case, I agree with the applicant that it would not be appropriate to remove Ms. Di Salvo as a party to the proceeding. As the directing mind of the corporate respondent and the individual who took the position that the applicant had abandoned her employment on April 26, 2012, the personal respondent’s alleged conduct is a central issue, if not the central issue, in the case. This factor weighs against removing Ms. Di Salvo as a party to the proceeding.

18Another important consideration in deciding not to remove Ms. Di Salvo as a party is that, in the circumstances of this case, there would be little point in doing so. The Tribunal has stated that the unnecessary naming of personal respondents is a practice to be discouraged, because it serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. In this case, however, I cannot see how maintaining Ms. Di Salvo as a personal respondent either adds to the complexity of the proceedings or sets up a potential roadblock to resolution of the case. As the directing mind and sole shareholder of the respondent corporation, Ms. Di Salvo will clearly be the key person involved in responding to the Application, whether she is maintained as a personal respondent or not.

19Accordingly, the respondents’ Request that Ms. Di Salvo be removed as a party to the proceeding is denied.

DIRECTIONS

[20] The extent to which the applicant may refer to events that allegedly occurred prior to April 26, 2012 at the hearing of this matter is an evidentiary matter to be determined by the hearing adjudicator.

21The respondents’ Request to remove Mary R. Di Salvo as a party to the proceeding is denied.

[22] I am not seized.

Dated at Toronto, this 9^th^ day of October 2013.

“Signed by”

Sheri D. Price

Vice-chair

Hepting v. Mary R. Di Salvo Financial Services Corporation, 2013 HRTO 1707

Case Summary

[20] The extent to which the applicant may refer to events that allegedly occurred prior to April 26, 2012 at the hearing of this matter is an evidentiary matter to be determined by the hearing adjudicator.

[22] I am not seized.