Temor v. Hudson’s Bay Company, 2015 HRTO 117

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karima Temor

Applicant

-and-

Hudson’s Bay Company

Respondent

INTERIM DECISION

Adjudicator: David Muir Date: January 26, 2015 Citation: 2015 HRTO 117 Indexed as: Temor v. Hudson’s Bay Company

1The purpose of this Interim Decision is to address the respondents’ request to remove a number individual respondent as a party to this Application.

2In her Application the applicant alleges discrimination in employment on the basis of disability and reprisal. The respondents filed a Response (Form 2) in which they deny the allegations. The applicant has not filed a Reply (Form 3).

3On October 7, 2014 the respondent filed a Request for Order During Proceeding seeking the removal of a number of individual respondents. The applicant did not respond to this Request although given an opportunity to do so.

4The Request is granted and the style of cause amended accordingly.

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 respondents submit first that there do not appear to be any allegations made against any of the individuals. The respondents also submit that all of the allegations concerning the individual respondents arise from the applicant’s employment and also arise out of the performance of the individual respondents’ duties as employees of the organizational respondent. The respondents also argue that the organizational respondent is the corporate respondent that is alleged to be liable for the conduct of its employees. The respondent argues 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 the several individual respondents identified be required to participate in the proceeding as parties

8As indicated the applicant did not respond to this Request.

9I agree with the respondents’ submissions. In her Application the applicant alleges that the respondents failed to appropriately accommodate her disability related needs following a workplace injury. Several of the individual respondents are rarely mentioned in the otherwise detailed narrative of the Application. To the extent that their actions or inactions of these individuals can be identified it appears that their actions were taken in the course of their employment. In my view, considering all the circumstances, it is not necessary to the fair just and expeditious adjudication of this Application to involve the various individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

10The respondents’ request to remove the individual respondents is granted and the style of cause amended accordingly.

11I am not seized of this matter.