Amber Towsley v. Pursuit Health Management Inc., 2014 HRTO 52

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amber Towsley

Applicant

-and-

Pursuit Health Management Inc.

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: January 14, 2014

Citation: 2014 HRTO 52

Indexed as: Towsley v. Pursuit Health Management Inc.

WRITTEN SUBMISSIONS

Amber Towsley, Applicant

Beth Walden, Counsel

Pursuit Health Management Inc., Respondent

James Melnick, Counsel

1This Interim Decision concerns the applicant’s request to add two individuals as personal respondents, in addition to the corporate respondent named in the Application.

2The Application alleges that her employment with the corporate respondent was terminated one week after she disclosed that she was pregnant. She alleges that the decision to terminate her employment was made by John Barry, the Manager, and that Jan Barry was also involved. She seeks to add John Barry and Jan Barry as respondents to the Application. The respondent opposes the request.

3Section 46.3(1) of the Code provides as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

4The other subsections mentioned in section 46.3(1) are not relevant to the issue in this case. The purpose of section 46.3(1) is to clarify that in most employment cases, the corporation is deemed to be liable for an infringement of an employee’s Code-protected rights even if the decision or actions that are alleged to be discriminatory were made or done by an individual.

5The Tribunal has expanded on this principle in its decisions and in a Practice Direction on Naming Respondents, which provides in part as follows:

Where there is an organizational respondent who may be held liable for the alleged infringement and is in a position to satisfy any remedies ordered, the naming of individual respondents is generally discouraged. The HRTO has noted in its decisions that the unnecessary naming of individuals, whose conduct is not a central issue in the alleged harassment or discrimination, adds to the complexity of the case and can act as a roadblock to resolution of the dispute (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14).

If an individual was acting in the regular course of their employment or duties, you may not need to name the individual as a separate respondent in addition to the organization. Before deciding to name an individual respondent, you may wish to consider:

• Is there an organization respondent who you are alleging is liable for the same conduct?

• Is there any reason why the organization respondent may not be able to respond to or remedy the alleged infringement of the Human Rights Code?

• Is the conduct of the individual a central issue or is the nature of the alleged conduct such that it may be appropriate to award a remedy specifically against that individual if a human rights violation is found, for example where it is alleged that the individual engaged in harassment contrary to the Code?

6The applicant’s request to add the personal respondents is based primarily on the fact that the decisions regarding the applicant’s employment and the termination of the employment were made personally by the proposed personal respondents. The applicant suggests that in these circumstances, the Tribunal might find that the proposed personal respondents have individual liability for their actions.

7The respondent submits that there is no basis for adding the personal respondents. The respondent confirms that the corporate respondent will accept any and all liability in the event that the Tribunal finds that the applicant was discriminated against because of her pregnancy or sex. The corporate respondent asserts that there is no reason to believe that the corporate respondent would be unable to pay any compensation that might be awarded.

8The applicant refers to Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.) in which the Court noted that in some cases, a personal respondent is properly made jointly and severally liable together with the corporate respondent.

9Cases where this may be appropriate include when the allegations include harassment, which is excluded from the deemed liability of a corporation established by section 46.3(1), or when there is doubt about the ability of the corporate respondent to pay any compensation that may be awarded or to fulfill any other order that the Tribunal may make if it is determined that the applicant experienced discrimination contrary to the Code.

10These factors do not appear to be relevant in this case and nor do there appear to be any other compelling reasons to add the proposed personal respondents.

11For these reasons, the applicant’s request to add personal respondents is denied.