HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sumalee Thoanin
Applicant
-and-
Churchill Chums School-Age Childcare Centre Inc.
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Thoanin v. Churchill Chums School-Age Childcare Centre
WRITTEN SUBMISSIONS
Somalee Thoanin, Applicant
Self-represented
Churchill Chums School-Age Childcare Centre Inc., Respondent
Maria Kotsopoulos, 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 and race.
2The Application names, Cathy Di Demenico, who is the Program and Staff Supervisor as a personal respondent. The corporate and the personal respondent filed two separate Responses in August 2012.
3On January 28, 2013, the respondents filed a Request for an Order During Proceeding seeking;
a. Leave to amend their Responses; and
b. To remove the personal respondent Cathy Di Demenico as a respondent to the Application.
4On February 11, 2013 the applicant filed submissions in response to the Requests, in which she opposes the Orders sought.
Amendment of the Response
5Having reviewed this matter, I find that it is fair and just to allow the Request to amend which in essence explains the respondent’s position in a more comprehensive manner. I find that the applicant will not be prejudiced, since the hearing has not yet been scheduled. Though the applicant has opposed the amendment of the Response, she has not provided any explanation in support of this opposition.
Removal of Personal respondent
6In 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.
7The respondents submit that all of the principles in Persaud have been satisfied and that it is appropriate to remove the personal respondent as a party. The applicant states in her submissions to the Tribunal that the personal respondent was actively involved in the events surrounding her illness.
8I have reviewed the pleadings, and there appear to be no allegations against the personal respondent. The Corporate respondent has pled that it made decisions with respect to the applicant’s employment. In the absence of any submissions or allegations from the applicant as to why and how Ms. Di Demenico infringed the applicant’s Code rights, I find that there is no compelling reason that she remains a respondent to the Application.
Orders
9The Tribunal orders:
a. Cathy Di Deminico is removed as a personal respondent and the style of cause is accordingly amended;
b. The Response is amended to include the Response attached to the respondent’s Request for Order; and
c. The applicant is directed to file a Reply to the amended Response within 21 days of the date of this Interim Decision.
10I am not seized.
Dated at Toronto, this 8th day of March, 2013.
“signed by”
Geneviève Debané
Vice-chair