HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lyndsay Massey
Applicant
-and-
SYNNEX Canada Limited
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Massey v. SYNNEX Canada Limited
WRITTEN SUBMISSIONS
SYNNEX Canada Limited, Respondent
Jeremy D. Schwartz, 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 sex.
2The Application names SYNNEX Canada Limited (the "corporate respondent") and Mary Alice Rau as respondents.
3On March 19, 2013, the respondents filed a common Response. On March 27, 2013 the respondents delivered and filed a Request for an Order During Proceedings, seeking the removal of Ms. Rau as a respondent to the Application (the "Request").
4On April 9, 2013, the Tribunal granted the applicant's request for an extension to file a Reply which was due on April 15, 2013. As of this date the applicant has not filed a Reply nor has she filed a response to the Request to remove Ms. Rau as a respondent. Therefore, the respondent's Request is not contested by the applicant.
BACKGROUND
5The Application alleges that the applicant was terminated the day after she advised Ms. Rau that she was pregnant. The respondents take the position that the decision to terminate the applicant, who was a probationary employee, was made prior to the disclosure of her pregnancy and was on the basis that she lied twice about the fact that she did not possess a valid driver's license.
6Ms. Rau, was the applicant's direct supervisor, however, she works in Grenville, South Carolina. In the Response the respondents allege that at least two other employees, including the Human Resources Director were involved in the decision to terminate the applicant's employment.
7In the Request, the corporate respondent accepts that it is liable for the conduct of Ms. Rau who was at all times acting within the scope of her employment. It also maintains that it has the ability to satisfy the remedies sought by the applicant and that there will be no prejudice to the applicant because it undertakes to make Ms. Rau available to testify at the hearing.
DECISION
8Rule 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.
9The 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?
10Having reviewed the submissions of the respondents, the Tribunal finds that all of the factors in Persaud have been met. The corporate respondent is a corporation that has accepted vicarious liability for the actions Ms. Rau and there are no allegations in the Application that she was acting outside of the scope of her employment. The respondents have undertaken to make Ms. Rau available to testify if this matter proceeds to a hearing, and therefore, there is no prejudice to the applicant.
11Further, the Tribunal notes that the applicant seeks as a remedy that some of the corporate respondent' employees, including Ms. Rau be disciplined or terminated. Without addressing the issue of whether the Tribunal has the jurisdiction to impose the remedies sought by the applicant, this by itself is not a compelling reason to maintain Ms. Rau as a personal respondent although she may be an affected party entitled to intervene if she wishes to make such a request.
ORDER
12The Tribunal Orders the removal of Mary Alice Rau as a personal respondent. The title of Proceedings shall be amended accordingly to remove her name.
13I am not seized.
Dated at Toronto, this 8th day of May, 2013.
"Signed by"
Geneviève Debané
Vice-chair