Herrington v. Lambton Shores (Municipality), 2014 HRTO 1052

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Herrington

Applicant

-and-

Municipality of Lambton Shores

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: July 17, 2014

Citation: 2014 HRTO 1052

Indexed as: Herrington v. Lambton Shores (Municipality)

WRITTEN SUBMISSIONS

Michael Herrington, Applicant

No submissions filed

Municipality of Lambton Shores and Janet Ferguson, Respondents

Christopher White, Counsel

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Municipality of Lambton Shores and Janet Ferguson were named as respondents.

2The respondents filed a Request for Order During Proceedings ("RFOP") seeking to remove Janet Ferguson as a personal respondent. Subsequent to filing the RFOP, the Tribunal held a mediation with the parties, but it did not result in a settlement.

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 corporate respondent accepts any deemed or vicarious liability for the alleged conduct of the personal respondent, who was acting within the scope of her employment, and as her employer, there is no issue of the corporate respondent to respond to and remedy the Code infringements in the event the Application is upheld. They further submit that there is no prejudice to the applicant if the personal respondent is removed.

6The applicant did not file a Response to the RFOP and the time for doing so has elapsed.

7I agree with the respondents' submissions. In my view, considering all the circumstances, it is not necessary to name the personal respondent in order to have a fair, just, and expeditious resolution of the merits of the Application.

8The respondents' request to remove Janet Ferguson as a personal respondent to the Application is therefore granted. The style of cause shall be amended accordingly.

9I am not seized with this matter.