HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Grace Ren

Applicant

-and-

International Alliance of Healthcare Educators/Upledger Institute and Susan Steiner

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 24, 2013

Citation: 2013 HRTO 685

Indexed as: Ren v. International Alliance of Healthcare Educators/Upledger Institute

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondent as a party to this Application.

BACKGROUND

2The applicant filed an application alleging that the respondents discriminated against her in the provision of educational services because of her race, colour, ancestry and ethnic origin. She also alleges that the respondents reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is a Canadian citizen who was born in China. She took courses in cranial sacral therapy with the corporate respondent and the personal respondent was an instructor for one of her courses.

Request to Remove the Individual Respondent

3Rule 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 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.

4The 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:

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?

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.

5The respondents submit that the personal respondent should be removed because the corporate respondent is alleged to be responsible for her conduct. The corporate respondent accepts liability for the personal respondent’s conduct. The respondents submit that there is no issue as to the ability of the corporate respondent to respond to or remedy any Code infringement. The respondents also submit that there is no compelling reason to continue the proceeding against the personal respondent. They submit that it would not be appropriate to award a remedy against the personal respondent if there is a finding of discrimination in this case.

6The applicant opposes the removal of the personal respondent as a party to the proceeding on the basis that her alleged actions exceeded the scope of her employment with the corporate respondent. The applicant submits that there is a basis for the Tribunal to find the personal respondent liable personally for the alleged harassing and discriminatory conduct in this case.

7In my view, it would not be appropriate to remove the personal respondent as a party to the proceeding in the circumstances of this case. Among other things, the applicant alleges that the personal respondent treated her differently from Caucasian students. She also alleges that the personal respondent engaged in conduct and made statements which implied that the applicant was less capable than other students due to her Asian background. Finally, the applicant alleges that the personal respondent placed a note in her file indicating that she was not qualified to continue to the next stage of her training and that she would have to repeat a number of courses she had already taken.

8This alleged conduct on the part of the personal respondent is a central issue in this case. I appreciate that the parties have different versions of the facts of this dispute. At this stage, my assessment as to whether the personal respondent should be removed as a party is based on whether the allegations raised by the applicant, assuming them to be true, provide a compelling reason for her to continue as a party to the Application. In my view, they do. I find that there is a sufficient basis to maintain the personal respondent as a party to this proceeding. In my view, the nature of the personal respondent’s alleged conduct, if proven, could make it appropriate to award a remedy specifically against her if an infringement is found. As a result, the respondents’ request to remove the personal respondent as a party to the Application is denied.

9I am not seized of this matter.