HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sonia Agosto
Applicant
-and-
Alpine Access Inc.
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Agosto v. Alpine Access Inc.
WRITTEN SUBMISSIONS
Sonia Agosto, Applicant
Self-represented
Alpine Access Inc. and Kim Fraser, Respondents
Kyle MacIsaac, Counsel
INTRODUCTION
1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondent as a party to this Application.
BACKGROUND
2This Application alleges harassment and 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”).
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 there is no evidentiary foundation on which to base a claim against the personal respondent and specifically that the applicant makes no reference to any specific incident of harassment by the personal respondent.
6The respondents further submit that the personal respondent at all times was an employee of the corporate respondent and that the corporate respondent is vicariously liable for Code violations of its employees.
7The applicant submits the personal respondent should not be removed because she caused the discrimination and harassment, although she provides no details.
8I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve the individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application. The corporate respondent accepts vicarious liability, there is no issue with respect to the corporate respondent’s ability to satisfy any remedy and there are no specifics provided by the applicant that the individual conduct of the personal respondent is a central issue nor that the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual.
9The respondents’ request to remove Kim Fraser as an individual respondent to the Application is therefore granted. The style of cause is amended accordingly.
10I am not seized of this matter.
Dated at Toronto, this 24th day of November, 2015.
“signed by”
Dawn J. Kershaw
Vice-chair