HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mark Gallivan
Applicant
-and-
Solid General Contractors Inc.
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Gallivan v. Solid General Contractors Inc.
WRITTEN SUBMISSIONS
Mark Gallivan, Applicant
Bay Ryley, Counsel
Solid General Contractors Inc. and Cliff Gethings, Respondents
Natalie C. MacDonald, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability.
2The applicant was an employee of the corporate respondent and he alleges that the respondent failed to accommodate him with respect to his disability. The applicant identifies an individual respondent who is a managerial employee of the corporate respondent and whom he alleges was involved in the discrimination.
3This Interim Decision addresses a Request for an Order During Proceedings filed by the respondents on November 18, 2013.
The Respondents’ Request
4In the Request for an Order During Proceedings (the “Request”), the respondents seek the removal of the individual respondent as a party to the Application. The applicant opposes the Request.
Removal of Individual Respondents
5Rule 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 paragraph 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.
6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 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?
7The Tribunal framed the question to be considered in considering such a request in Octavius v. Ontario (Community Safety and Correctional Services), 2013 HRTO 1518 as:
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 submitted the criteria for removal of an individual respondent set out in Persaud, above, are met in this case. They submit that the corporate respondent is also alleged to be liable for the alleged discrimination. The corporate respondent has accepted vicarious liability in this matter and has the financial ability to satisfy any monetary or other remedy for any violations of the Code. The respondents submit that the allegations arise in the context of the individual respondent’s employment and there is no allegation that the individual respondent was acting outside the scope of his employment. The individual respondent was not a directing mind of the corporation. Therefore, there is no compelling reason to continue the proceeding against the individual respondents. The applicant would suffer no prejudice because the individual respondent will be available as a witness.
9The applicant submitted that this case was similar to Budd v. McDougall, 2013 HRTO 93. However I note the individual respondent in that case was a secretary of the corporation and occupied a senior position, in addition to which the corporate respondent did not file any response.
10Based on the submissions in this case, it appears that the corporate respondent is prepared to accept any potential liability on behalf of the individual respondent; it can respond to the allegations; and, if required, remedy any violations. The facts alleged in the Application do not indicate that the individual respondent was acting outside the scope of his employment duties and authority as a manager. The applicant has not asserted any specific prejudice if the individual respondent is removed and I am unable to find any compelling reason to continue this proceeding against the individual respondent.
Order
11The Tribunal orders as follows:
The respondents’ request to remove the individual respondent is granted and the style of cause is amended accordingly.
12I am not seized.
Dated at Toronto, this 9th day of December, 2013.
“signed by”
Dawn J. Kershaw
Vice-chair