Candice Uniac v. 1390386 Ontario Inc., 2014 HRTO 1823

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Candice Uniac

Applicant

-and-

1390386 Ontario Inc.

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: December 23, 2014

Citation: 2014 HRTO 1823

Indexed as: Uniac v. 1390386 Ontario Inc.

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondent J.C. as a party to this Application under the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

2In her Application, the applicant alleges discrimination in employment on the basis of age and disability. The respondents filed a Response (Form 2) in which they deny the allegations. The applicant has filed a Reply (Form 3).

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 all of the allegations concerning the individual respondent arise from the applicant’s employment and arise out of the performance of the individual respondent’s duties as a manager. The respondents also argue that the organizational respondent is “clearly the corporate respondent that is alleged to be liable” for the conduct of J.C. The respondents argue as well that there is no issue that the corporate respondent is vicariously liable for any alleged discrimination or that it unable to comply with any remedial order made by the Tribunal in the event that liability is found. The respondents submit that there is no compelling reason to require that J.C. participate in the proceeding as a party.

6The applicant submits she does not wish to have J.C. removed from the Application.

7I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve J.C. as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.

8The respondents’ request to remove J.C. as an individual respondent to the Application is therefore granted. The style of cause is amended accordingly.

9I am not seized of this matter.