HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cezanne Loreilhe
Applicant
-and-
Trillium Health Partners – Credit Valley Hospital
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Loreilhe v. Trillium Health Partners
1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondents as parties to this Application.
2In her Application the applicant alleges discrimination in employment on the basis of ancestry, colour, disability, ethnic origin, family status, place origin and race.
3The respondents filed a Response (Form 2) in which they deny the allegations. The applicant has not filed a Reply (Form 3).
4The respondents have filed a Request for Order During Proceeding seeking the removal of the individual respondents. The applicant opposed the Request.
5The Request is granted and the style of cause amended accordingly.
6Rule 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.
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:
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.
8The respondent argues that the individual respondents were acting within the scope of their employment and there are no allegations made which relate to these individuals personally. In this regard the respondents rely on section 46.3 of the Code, which they suggest makes the corporate respondent liable for their actions. The respondent also argues that the Chief Executive Officers of the corporate respondent, including one of the identified respondents, had no involvement in any of the issues raised in the Application.
9The corporate respondent argues that it assumes responsibility for the actions of the individual respondents and will be able to respond to any remedial order that might be made in the event that liability is found. The respondent argues as well that there is no prejudice to the applicant if the individuals are removed for several of the reasons outlined above and because the applicant has alleged no specific acts of discrimination outside of the scope of their employment or in their personal capacity.
10The applicant argued that the individual respondents should remain parties to the Application. The applicant argues that several of the individuals named were acting outside of their employment but does not say why. The applicant also argues that because the corporate respondent is liable for their alleged actions does not mean that they should necessarily be removed.
11I agree with the respondents’ submissions. To the extent that its employees’ actions or inactions can be identified, it appears that their actions were taken in the course of their employment. I would also observe that several of them are rarely mentioned in what is otherwise a detailed narrative in the Application. One of the proposed individual respondents is not mentioned at all. One, Ms. H, is mentioned frequently, but I have reviewed the Application in detail and it appears that her involvement in the dispute all relates to her employment responsibilities. I do agree with the applicant that the mere fact that the corporate respondent is liable for their actions does not require their removal; however, in this case it appears to me that there is no compelling juridicial reason that they remain parties to the Application. In short, it is not necessary to the fair, just and expeditious adjudication of this Application to involve these individuals as parties.
12Credit Valley Hospital’s Request to remove its employees as individual respondents is granted and the style of cause amended accordingly.
13I am not seized of this matter.
Dated at Toronto, this 17th day of March, 2015.
“Signed by”
David Muir
Vice-chair