HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kerster James
Applicant
-and-
Family Physiotherapy Centre Inc., Steve Brown,
Joanne Leclair and Dave Bellefleur
Respondents
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: James v. Family Physiotherapy Centre Inc.
APPEARANCES
Kerster James, Applicant
Mary Catherine Chambers, Counsel
Family Physiotherapy Centre Inc., Steve Brown, Joanne Leclair and Dave Bellefleur, Respondents
Alanna Twohey, Counsel
Introduction
1The purpose of this Interim Decision is to address the respondents’ request to remove the three named individual respondents as parties to this Application.
BACKGROUND
2The applicant filed this Application on October 18, 2011 alleging discrimination in employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He named the company for which he worked and three individuals employed with it as respondents to this Application.
3The respondents brought a Request for an Order During Proceedings asking the Tribunal to remove the three individual respondents on the basis that they were not necessary parties, given the corporate respondent’s position that they were acting within the scope of their employment at all material times.
decision and analysis
4Rule 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.
5The 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:
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?
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.
6In relation to the first three elements of the test in Persaud the corporate respondent submits that it has been named, is able to respond to and remedy the alleged infringements, and accepts that it is liable for the acts of the individual respondents, whom it submits were all acting within the scope of their employment.
7The applicant acknowledges that the corporate respondent is a named party, but alleges that its acceptance of vicarious liability for the conduct of the three individual respondents is limited in its scope. At para. 7 of Schedule “A” to the respondents’ Request for an Order During Proceedings the corporate respondent articulates its position as follows:
Further, Family Physio acknowledges that, in this case, to the extent that Mr. Brown, Mrs. Leclair and Mr. Bellefleur acted within their legitimate function as President, Director of Operations, and Clinic Manager, respectively, it is liable for their actions.
8I agree with the applicant that the corporate respondent’s acceptance of vicarious liability is explicitly restricted to actions by the three individuals within their legitimate functions as employees of the company. In relation to the second element of the test in Persaud, this raises an issue as to the corporate respondent’s vicarious liability for the conduct of the personal respondents who seek to be removed.
9In this regard I want to be clear that I am making no findings at this stage as to the merits of the applicant’s allegations regarding the conduct of the three personal respondents. That is a matter to be determined at the hearing of this Application. However, the position taken by the corporate respondent as to the limits of its vicarious liability raises the possibility – which may or may not be remote – that the Tribunal would find that one or more of the personal respondents acted outside the scope of their employment and discriminated. Removing the three individuals as respondents would then deprive the applicant of a remedy as against any one of the individuals found liable.
10Although they are only allegations at this stage, it is clear that all three individuals played a central role in the employment relationship between the applicant and the corporate respondent. The allegations advanced by the applicant are that all three had a direct role in what he maintains was a failure to accommodate his disability, and that one, Mr. Brown, was responsible for what he claims was a discriminatory termination of his employment. It is possible, given their roles in the disputes between the parties, that individual remedies might be appropriate were this Application to succeed. This possibility, coupled with the qualified nature of the corporate respondent’s acceptance of vicarious liability, means that the applicant could be seriously prejudiced by the removal of the three individuals as respondents. For these reasons the respondents’ Request is denied.
order
11The Request to remove the individual respondents is denied.
12I am not seized.
Dated at Toronto, this 15^th^ day of January, 2013.
“signed by”
Paul Aterman
Vice-chair