David Mosquera v. Halton District School Board, 2014 HRTO 751

Human Rights Tribunal of Ontario

B E T W E E N:

David Mosquera Applicant

-and-

Halton District School Board Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: May 27, 2014 Citation: 2014 HRTO 751 Indexed as: Mosquera v. Halton District School Board

INTRODUCTION

1The purpose of this Interim Decision is to address the request of the individual respondents to be removed as parties to this Application.

BACKGROUND

2This Application was filed against two individual respondents: Don Vrooman and Dean Barnes. The Application was filed on March 3, 2014, and delivered to the individual respondents by letter dated April 1, 2014.

3On May 6, 2014, the individual respondents filed a Request for Order During Proceedings asking to be removed from the Application. In the alternative, they are requesting that the Halton District School Board be added as a respondent in their place. An extension of time to file the Response is also requested.

4The applicant consents to the removal of the individual respondents and the substitution of the Halton District School Board as the named respondent. He objects to any further delay in processing the Application.

Request to Remove the Individual Respondents

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:

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 individual respondents are removed and the Halton District School Board is substituted as the named respondent to this Application. The individual respondents have not been named in the style of cause in this Decision and will not be named from this point forward.

ORDER

8The individual respondents are removed as respondents to this Application and the Halton District School Board is the named respondent.

9The Halton District School Board must file its Response to the Application by June 24, 2014.

10I am not seized of this matter.