Delargie v. St. Joseph’s Healthcare Hamilton, 2015 HRTO 1329

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sandra Delargie

Applicant

-and-

St. Joseph’s Healthcare Hamilton

Respondent

-and-

Canadian Union of Public Employees, Local 786

Intervenor

INTERIM DECISION

Adjudicator: Alison Renton

Date: October 6, 2015

Citation: 2015 HRTO 1329

Indexed as: Delargie v. St. Joseph’s Healthcare Hamilton

WRITTEN SUBMISSIONS

Sandra Delargie, Applicant

Wade Poziomka, Counsel

St. Joseph’s Healthcare Hamilton and Debbie Bang, Respondents

Frank Angeletti, Counsel

Canadian Union of Public Employees, Local 786, Intervenor

Elizabeth Nurse, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on June 2, 2015.

2The respondents have filed a joint Response denying the allegations against it. They subsequently filed a Request for an Order During Proceedings (“RFOP”), requesting that the Tribunal dismiss part of the Application as being untimely and remove the personal respondent. The respondents submit that parts of the Application are more than a year before the Application was filed and that there is no good faith explanation for their delay. Further, they submit that the personal respondent was acting within the scope of her duties and that the organizational respondent can respond to the allegations against the personal respondent.

3The intervenor filed a Response to the RFOP, submitting that it takes no position on the RFOP.

4The applicant filed a Response to the RFOP. She objects to the Tribunal removing the personal respondent, submitting that this is not a case where an unsophisticated applicant has named every individual involved in the facts giving rise to the Application. She also submits that all of her Application is timely, fall within a series of incidents within the meaning of section 34(1) of the Code, and that some have been included as context for the Application.

Removal of the Personal Respondent

5Rule 1.7(b) of the Tribunal’s Rules of Procedure gives the Tribunal the power to remove a party. The Tribunal’s Practice Direction on Naming Respondents states that the Tribunal “…regularly grants requests to remove individual respondents where there is an organization respondent in a position to respond to the allegations”.

6In 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.

7The 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.

8In the circumstances of this case, the individual conduct of the personal respondent is central to this case. While the organizational respondent has not explicitly stated that it would assume liability for the personal respondent in the event that Code violations were found, a joint Response was filed on behalf of both respondents, and the respondents submit both that the personal respondent was not acting outside the scope of her authority and that the factors set out in Persaud, above, support their request to remove the personal respondent. Implicitly the organizational respondent has represented that it will assume liability for the personal respondent’s actions.

9Accordingly, the personal respondent will be removed and the style of cause amended.

Timeliness of Some of the Applicant’s Allegations

10There are a number of factual assertions in the Application which are more than a year before the Application was filed.

11I find that this is an issue that is best left to the hearing adjudicator to determine whether such factual assertions are allegations or set out as context to the applicant’s other allegations.

order

12The Tribunal orders:

a. Debbie Bang is removed as a personal respondent; and,

b. Whether the factual assertions, which are more than a year before the Application was filed (June 2, 2015) are timely or not is an issue to be left to the adjudicator hearing the Application.

13I am not seized with this matter.