HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ellaine Richard
Applicant
-and-
Toronto Transit Commission
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Richard v. Toronto Transit Commission
Introduction
1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondents as parties to this Application. The applicant did not respond to the respondents’ request.
2For the reasons that follow the individual respondents are removed and the style of cause amended accordingly
Request to Remove the Individual Respondents
3Rule 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.
4The 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?
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.
5The respondents submit that the individual respondents should be removed because the interactions described by the applicant all took place within the scope of their employment as supervisory employees of the respondent. The organizational respondent acknowledges that it is responsible for their actions and accepts liability in the event that their actions are found to be in violation of the Code. It also asserts that it is able to respond to the entirely of the Application. Finally the respondents argue that there is no compelling juridical reason for the two individuals to remain as parties to the proceeding.
6The applicant argues that the individual respondents should remain as respondents because as supervisors they are responsible to ensure that the workplace is safe for workers.
7I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve the individual respondents as parties in order to have a fair, just and expeditious resolution of the merits of the Application.
8The respondents’ request to remove the individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.
Other matters
9The respondent complains that the applicant is attempting to amend the Application by the addition of new allegations related to subsequent discipline imposed on the applicant. The respondent’s concerns flows appears from the applicant disclosing documents that relate only to the discipline imposed on the applicant several months later.
10The applicant denies that she is attempting to amend. The applicant has not filed a Request for Order seeking to amend the Application. As such there is no request to amend and the allegations remain as framed in the Form 1 and relate to an alleged failure to accommodate an alleged disability on or about July 21, 2014.
11The applicant has indicated that she is seeking additional remedies. The Tribunal has routinely granted requests to amend remedy and if the applicant were to make such a request it would likely be granted. As the parties are aware, ultimately it is the Tribunal that would determine the appropriate remedy and may of its own motion seek the submissions of the parties on remedies that it might propose in the event that liability is found.
12I am not seized of this matter.
Dated at Toronto, this 14th day of October, 2015.
“Signed By”
David Muir
Vice-chair