Crites v. Stoney Creek Community Homes Inc., 2013 HRTO 344

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Johanna Crites

Applicant

-and-

Stoney Creek Community Homes Inc. and Robert McKinnell

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 28, 2013

Citation: 2013 HRTO 344

Indexed as: Crites v. Stoney Creek Community Homes Inc.

APPEARANCES

Johanna Crites, Applicant

Jennifer Zdriluk, Counsel

Stoney Creek Community Homes Inc. and Robert McKinnell, Respondents

Elizabeth Comuzzi, Representative

1The respondent filed a Request seeking the removal of the individual respondent from this proceeding. The applicant opposes the Request.

2The Request contains no evidence or argument in support of removing the individual respondent with the exception of the statement “Stoney Creek Community Homes Inc., employs Mr. McKinnell and as such will assume all responsibility for any decisions by the tribunal.”

3The Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability, sex and sexual solicitation or advances. The applicant alleges that the individual respondent personally engaged in inappropriate comments and conduct which would constitute discrimination. Those allegations appear to be central to the applicant’s claim.

4In Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), the Tribunal suggested that in exercising its discretion under Rule 14(b) to remove a party, the Tribunal may want to have regard to similar principles as have been applied when parties are added to an application. In dealing with the Request in Persaud, the Tribunal set out the following non-exhaustive list of considerations:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

5In this case there is no issue that the first three factors favour removing Mr. McKinnell as an individual respondent. However, unlike the facts in Persaud, Mr. McKinnell is not alleged to be acting as an “instrument” of the organizational respondent by simply carrying out a decision of the organization. The allegations against Mr. McKinnell are central to the applicant’s claim. It is true that he is alleged to have engaged in personal conduct for which the organizational respondent may be vicariously liable. However, in these circumstances, if an infringement is found, it may be appropriate to make an order against Mr. McKinnell in his personal capacity. Accordingly I decline to exercise my discretion to remove Mr. McKinnell as an individual respondent to this Application.

6Accordingly, the respondent’s Request is dismissed.

7I am not seized.