Wakefield v. Peoples Christian Academy Inc., 2013 HRTO 790

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carol Wakefield

Applicant

-and-

Peoples Christian Academy Inc. and Reg Andrews

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume Date: May 13, 2013 Citation: 2013 HRTO 790 Indexed as: Wakefield v. Peoples Christian Academy Inc.

APPEARANCES

Carol Wakefield, Applicant Erin Hallock, Counsel

Peoples Christian Academy Inc. and Reg Andrews, Respondents Trevor Lawson, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of age.

2The respondents filed a Request for an Order removing Reg Andrews as an individual respondent to the Application. The respondent relies on the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”). The respondent is also seeking an Order striking certain paragraphs of the Application. The applicant does not consent to the Request.

3In Persaud, the Tribunal set out a number of factors to consider in determining the question of the removal of individual respondents:

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?

4Unlike the facts in Persaud, Mr. Andrews is not alleged to be acting as an “instrument” of the organizational respondent by simply carrying out a decision of the organization. Mr. Andrews is alleged to have engaged in discrimination as the person who made the decision not to renew the applicant’s employment contract. If an infringement is found, it may be appropriate to make an order against Mr. Andrews in his personal capacity as well as the organizational respondent. Accordingly I decline to exercise my discretion to remove Mr. Andrews as an individual respondent to this Application.

5The respondents are also seeking an Order striking six paragraphs of the Application. Those paragraphs include statements related to the applicant’s earnings and the impact of the events she alleges in her Application. In my view, there is no compelling reason to strike those paragraphs at this stage and I leave it to the adjudicator who will hear this case on the merits to determine the scope of the issues and evidence to be advanced at the hearing.

Order

6The respondent’s Requests are denied.

7The parties will be offered an opportunity participate in mediation. If mediation is declined, the Application will move on to the next stage in the hearing process.

8I am not seized.