HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Morgan McMillan
Applicant
-and-
ProResp Inc.
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: McMillan v. ProResp Inc.
1The purpose of this Interim Decision is to address the respondents’ request to remove two individual respondents as a party to this Application under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2In his Application the applicant alleges discrimination in employment on the basis of disability.
3In his Application the applicant alleges that he was a person with a disability and despite advising the organizational respondent of his illness, he was terminated for reasons that were related to his medical condition at the time. The applicant alleges that the reasons given to him for his termination were pretexts and the real reason was that the applicant was off on a medical leave with an unknown return to work date.
4The respondents filed a Response. In their Response the respondents deny the allegations and assert that the applicant was dismissed with cause for a number of reasons. The respondents also assert that the applicant never requested accommodation of a disability.
5The applicant has not yet filed a Reply (Form 3).
6At the same time as their Response, the respondents filed a Request for Order During Proceeding seeking the removal of two individual respondents. The applicant opposed the Request.
7The Request is granted and the style of cause amended accordingly.
8Rule 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.
5The 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.
6The respondents argue that the individual respondents were at all times employed by the organizational respondent and acting within the scope of their employment. The organizational respondent acknowledges that it is liable for any acts or omissions of the individual respondents in relation to this dispute. The organizational respondent also argues that it can fully respond to the allegations and any remedial orders that might Be made in the event that a violation of the Code is found.
7The applicant argued that it would be only fair that the individual respondents be held responsible for their own actions.
8I agree with the respondents’ submissions. The two respondents do not appear to be included in the applicant’s narrative of complaints. It is not at all clear what role if any either individual had in the events described. In any event given the issues in dispute it is reasonably clear the two individual respondents, to the extent they had any involvement, would have been acting in the course of their employment. In my view, considering all the circumstances, it is not necessary to the fair, just, and expeditious adjudication of this Application that the two individual respondents remain as parties to the Application.
9The respondents’ request to remove the individual respondents is granted and the style of cause is amended accordingly.
10I am not seized of this matter.
Dated at Toronto, this 5th day of May, 2015.
“Signed by”
David Muir
Vice-chair