HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adolphus Trudeau
Applicant
-and-
Huronia Area Aboriginal Management Board (HAAMB) and Trish Meekins
Respondents
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Trudeau v. Huronia Area Aboriginal Management Board
WRITTEN SUBMISSIONS
Adolphus Trudeau, Applicant
Self-represented
Huronia Area Aboriginal Management Board (HAAMB), Respondent
Kent Elson, Counsel
Trish Meekins, Respondent
No one appearing
Introduction
1This Application alleges discrimination with respect to employment because of sex and sexual solicitation and advances, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2The applicant initially named Pamela Keeshig, his immediate supervisor in the workplace, as a personal respondent. He then filed a Form 10 seeking to remove Ms. Keeshig as a respondent and to add Trish Meekins, his former personal partner and former Board member of the respondent organization, as a personal respondent.
3The respondent organization consented to the removal of Ms. Keeshig as a personal respondent and took no position with respect to the request to add Trish Meekins as a personal respondent, noting that it did not represent Trish Meekins.
4A copy of the Form 10 (Request for Order) filed by the applicant, the Form 11 filed in response by the organizational respondent and the Application was served on the proposed respondent directing her to file a Form 11. She has not done so and the time for doing so has elapsed.
Request to Remove an Individual Respondent
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, 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:
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?
7In 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.
8In my view, considering all the circumstances, it is not necessary to involve Pamela Keeshig as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
9The applicant's request to remove Pamela Keeshig as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
Request to Add a Personal Respondent
10The Tribunal held in Smyth v. Toronto Police Services, 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?
The 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, supra, at para. 5, 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 individual respondent is a central issue in the proceedings. The factors from Persaud, are applicable to both requests to add individual 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.
11In the present case, the Application includes an allegation that the proposed personal respondent, who was a member of the Board (the applicant's employer) at the material time, subjected him to sexual harassment. The alleged facts, if proven, could support a finding that the proposed personal respondent violated the applicant's rights under the Code. The organizational respondent has taken no position on the request to add Trish Meekins as a personal respondent. The individual conduct of the proposed respondent is a central issue in the Application and there is no apparent prejudice to any party in adding the proposed respondent. In the circumstances, it appears that it would be appropriate to add the proposed individual respondent as a party to the proceedings. The applicant's Request for Order is granted and the style of cause is amended accordingly.
12On November 21, 2013, the proposed respondent was asked to advise the Tribunal and the parties if she was interested in attending mediation. She has not yet done so.
order:
13The applicant's request to remove Pamela Keeshig as an individual respondent and to add Trish Meekins as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
14The individual respondent has been provided with a copy of the Application and the Form 10 and 11 leading to this Interim Decision. The organizational respondent's Response will also be sent to the personal respondent along with a copy of this Interim Decision. The personal respondent is directed to file a Response to the Application (Form 2) within 35 days of the date of this Interim Decision.
15I am not seized.
Dated at Toronto, this 2nd day of April, 2014
"Signed By"
Jay Sengupta
Vice-chair