Rodney Smith v. Cambrian College of Applied Arts and Technology, 2015 HRTO 1489

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rodney Smith

Applicant

-and-

Cambrian College of Applied Arts and Technology

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 4, 2015

Citation: 2015 HRTO 1489

Indexed as: Smith v. Cambrian College of Applied Arts and Technology

WRITTEN SUBMISSIONS

Cambrian College of Applied Arts and Technology and Joan Campbell, Respondents

Stephanie Jeronimo, Counsel

Introduction

1The purpose of this Interim Decision is to address a request filed by Cambrian College of Applied Arts and Technology ("College") that it be substituted for Joan Campbell as the respondent to this Application.

BACKGROUND

2The applicant filed an Application alleging discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, H. 19, as amended (the "Code"). In particular, he alleged that the Dean of the School of Business at the College, Ms. Campbell, discriminated against him and failed to provide reasonable accommodations that were required by his disability. He also alleged that Ms. Campbell treated him differently and failed to provide accommodations for his disability when she assigned him a new and more difficult course load because of her belief that his disability would result in too many sick days.

3The applicant only named Ms. Campbell as a respondent to his Application.

4By Request for Order During Proceedings ("RFOP"), the College and Ms. Campbell requested that the Tribunal add the College as a respondent and that it remove Ms. Campbell as a respondent.

5The applicant did not respond to the RFOP and the time for doing so has now passed.

ANALYSIS AND FINDINGS

6The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 ("Smyth"). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

7When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 ("Persaud") when deciding whether to add or remove a personal respondent when there is an organizational respondent to the Application. These factors focus mainly on whether the corporate respondent is responsible for the conduct of the personal respondent, and whether there is a compelling legal reason for an individual to be retained as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his or her conduct is a central issue in the case and extends beyond implementing organizational policies or practices. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 and Persaud at para. 5.

8In the circumstances of this case, I find that it is appropriate to add the College as a respondent to the Application and to remove the personal respondent.

9The allegations in the Application all relate to alleged discrimination in the context of the applicant's employment. The College is the applicant's employer, not the personal respondent. As the applicant's employer, the College is in the best position to respond to the allegations, all of which relate to the applicant's employment with the College. The College is also deemed liable, under s. 46.3 of the Code, for the acts of its employees carried out in the course of their employment. For these reasons, I find it appropriate to grant the College's request to be added as a respondent to the Application.

10I also find that it is appropriate to remove the personal respondent. I agree with the College that, if it is added to the Application, there is no reason for continuing the Application against the personal respondent. All of Ms. Campbell's actions challenged in the Application were carried out in the course of her employment with the College. Therefore, the College is liable for any potential liability created by Ms. Campbell's actions and there is no issue as to the College's ability to comply with any remedial orders made by the Tribunal if it finds a violation of the Code in this case. Finally, I find that there is no compelling reason to maintain the Application as against the personal respondent, as the actions complained of in the Application are actions carried out within the scope of the personal respondent's responsibilities as the Dean of the School of Business. As such, I find that the organizational respondent is the proper respondent to the applicant's discrimination allegations.

ORDER

11The respondents' requests to add the College as a respondent and to remove Ms. Campbell as a personal respondent are granted. The style of cause is amended accordingly.

12Since both parties have agreed to mediation, the Registrar shall schedule a mediation. The parties will be sent a Notice of Mediation advising them of the date, time and location of the mediation.

13I am not seized of this matter.