Muir v. Humber River Regional Hospital, 2013 HRTO 724

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stannie Muir

Applicant

-and-

Humber River Regional Hospital

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 1, 2013

Citation: 2013 HRTO 724

Indexed as: Muir v. Humber River Regional Hospital

WRITTEN SUBMISSIONS

Stannie Muir, Applicant ) John Westdal, Counsel

Humber River Regional Hospital and ) Daryn M. Jeffries, Counsel

Ester Correa Candace Nameth, )

Diane Avgerinos, Greg Shaw, Kelly )

Kimmens and John Jordan, )

Respondents )

1These two Applications commenced by the same applicant allege discrimination with respect to employment on the basis of disability under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. Application 2011-09434-I was filed on July 21, 2011 and Application 2012-10850-I was filed on February 3, 2012.

2The respondents in these matters have requested that the Tribunal grant an order removing the individual respondents from the two Applications.

3The Tribunal issued a Case Assessment Direction on March 19, 2013 directing the applicant to file written submissions with respect to the respondents’ request and the issue of whether or not some or all of the individual respondents should be removed from the Applications.

4The applicant filed submissions on April 2, 2013. The applicant submits that each of the individual respondents had a central role in the applicant’s experience of discrimination.

5The respondent filed submissions on April 15, 2013. The respondents submit that all individual respondents should be removed from the Applications on the basis that they were acting solely within the scope of their employment duties.

Removal of Individual Respondents

6The Tribunal’s approach to the naming of individuals is now well-established. The Tribunal considers the following factors, as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5, in deciding whether to remove an individual respondent from a proceeding:

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?

7In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

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.

8I accept the respondents’ submissions that the applicant’s allegations pertain to the individual respondents acting in the course of their employment. There are no allegations against the individual respondents that relate to their personal behaviour outside decisions or actions taken on behalf of the organizational respondent. There is no dispute that all individual respondents interacted with the applicant in either as a supervisor or in their role as managers and directors being consulted with respect to the applicant’s accommodation or sick benefits. The applicant has not identified any prejudice or concerns with respect to the corporate respondent’s responsibility and ability to satisfy any remedies. As such, there does not appear to be any compelling reason to continue the Application as against the individual respondents given that all the allegations relate to the individual respondents acting within the scope of their responsibilities for the organizational respondent.

Consolidation

9By way of a previous Case Assessment Direction, the Tribunal sought the parties’ submissions with respect to consolidation.

10The applicant agrees to consolidate the two Applications.

11The respondents oppose consolidation on the basis that there is little overlap in the claims because the first Application deals with the denial of the applicant’s disability benefits, whereas the second Application makes allegations regarding inadequate accommodation.

12Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

13In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

14I find that the above-noted factors support consolidation. Consolidation will likely assist in streamlining the cases and will save the parties’ and the Tribunal’s time and resources. Given the common parties, overlapping facts, issues, and interests present in the two Applications, the Tribunal directs that the two Applications be consolidated.

15Accordingly, the Tribunal orders that the individual respondents are removed from these Applications and the style of cause is amended to reflect the same. The Applications are consolidated.

16I am not seized.