Burke v. Muskoka Riverside Inn, 2014 HRTO 279

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Dorthe Burke

Applicant

-and-

Muskoka Riverside Inn, Brenda McGillis and Don McGillis

Respondents

INTERIM DECISION

Adjudicator: Alison Renton

Date: March 4, 2014

Citation: 2014 HRTO 279

Indexed as: Burke v. Muskoka Riverside Inn

WRITTEN SUBMISSIONS

Anne Dorthe Burke, Applicant

Self-represented

Muskoka Riverside Inn, Brenda McGillis, and Don McGillis, Respondents

No submissions filed

1This is an Application filed on September 16, 2013, under section 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 disability. The corporate respondent filed a Response denying the allegations against it.

2A mediation has been scheduled for May 15, 2014, in North Bay pursuant to a Notice of Mediation dated February 25, 2014.

3The applicant filed a Request for Order During Proceedings ("RFOP") dated February 8, 2014 seeking to add two individuals as personal respondents to her Application. The applicant submits that the corporate respondent, or at least its assets, has been sold and she seeks to add what appears to be the owners as personal respondents. In her Application, the applicant raised a number of allegations specifically against Brenda McGillis.

4The respondents have not filed a Response to a RFOP and the time for doing so has elapsed.

analysis

5Rule 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 et al., 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.

6The 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.

7The Tribunal held in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

8The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud, above, at paragraph 6, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the personal respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add personal respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

9In this case, the Tribunal finds it appropriate to add both Brenda McGillis and Don McGillis as personal respondents. Mr. McGillis self-identifies, on the Response, as being the owner of the corporate respondent and the Response references that there was a sale of the corporate respondent. In the Application, the applicant made a number of allegations about Ms. McGillis which, if proven, could constitute a violation of the Code. It is unclear whether Ms. McGillis is also an owner of the corporate respondent although it appears that she is given that the substance of the Response appears to be written in first person by Ms. McGillis and uses the words "us", "our", and "we".

10The addition of the personal respondents is made at an early stage of the proceedings. It will not have an impact upon the mediation that is already scheduled and would not prejudice the respondents given that from the Response already filed it appears that they are both aware of the allegations in the Application.

11Accordingly, Brenda McGillis and Don McGillis are both added as personal respondents and the style of cause is amended accordingly. The personal respondents are directed to advise the Tribunal, copying the applicant, within seven days of the date of this Interim Decision whether or not they intend to file new Responses or whether they intend to rely upon the Response that has already been filed by the corporate respondent. If they intend to file a new Response(s), they shall have 35 days from the date of this Interim Decision to file a new Response(s).

12I am not seized with this matter.