HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Neha Puniani
Applicant
-and-
Rakesh Majithia CA Professional Corporation, Rakesh Majithia and Rooms Furniture and Accessories Inc.
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Puniani v. Rakesh Majithia CA Professional Corporation
WRITTEN SUBMISSIONS
Rakesh Majithia CA Professional Corporation and Rakesh Majithia,
Salma Sheikh, Counsel
Respondents
Introduction
1This Application filed on December 22, 2014 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges reprisal and discrimination in employment because of sex, including pregnancy. The applicant alleges she was terminated because of her pregnancy. This Interim Decision deals with who the respondents should be.
2The applicant named the personal respondent, Rakesh Majithia, in her Application. Mr. Majithia then filed two Form 2 Responses in March, 2015, one with him as the respondent, and a second “amended” Response, in which the corporation, Rakesh Majithia CA Professional Corporation, is named as the respondent. The corporation also names Rooms Furniture and Accessories Inc. as an additional respondent. The “amended” Response was filed with a Form 10 Request for an Order During Proceedings (“RFOP”), requesting that Mr. Majithia be removed as a respondent.
3The applicant did not file a Form 11 Response to a Request for an Order.
4The RFOP states the personal respondent only had dealings with the applicant as an officer of Rakesh Majithia CA Professional Corporation and therefore the personal respondent should be removed, and Rakesh Majithia CA Professional Corporation should be added as a respondent.
Decision and Analysis
5Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para 42 (“Sigrist”):
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 following non-exhaustive list of factors that may be helpful in assessing whether a personal respondent should be removed was set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 5:
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?
7There are no facts in the RFOP to persuade me that the personal respondent should be removed. Rakesh Majithia CA Professional Corporation has not stated that it accepts deemed or vicarious liability for the conduct of the personal respondent or addressed whether or not it has the ability to respond to or remedy any potential Code infringement.
8It is premature to remove the personal respondent as a party given the lack of relevant information provided with respect to the appropriateness of removing him. This is not a final decision with respect to whether the personal respondent should be removed as a party, which may be addressed as a preliminary issue with the adjudicator assigned to hear the case at the outset of the hearing.
9I also find it is appropriate to add Rakesh Majithia CA Professional Corporation as a corporate respondent given that it was the applicant’s employer and it has filed a Response. Although the applicant named only the personal respondent, she refers to her employment with Rakesh Majithia CA Professional Corporation, and refers again to this corporate respondent in her Form 3 Reply.
Order
10The request to remove the personal respondent is premature and is denied without prejudice to the personal respondent to renew the request for removal before the hearing adjudicator.
11The corporate respondent, Rakesh Majithia CA Professional Corporation, is added as a respondent.
12The Registrar will schedule this matter for a one day hearing.
13I am not seized of this matter.
Dated at Toronto, this 23rd day of November, 2015.
“Signed by”
Dawn J. Kershaw
Vice-chair