HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lorna Anderson
Applicant
-and-
LoyaltyOne Co.
Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Anderson v. LoyaltyOne Co.
WRITTEN SUBMISSIONS
Lorna Anderson, Applicant
Cecil Norman, Representative
LoyaltyOne Co., Sophie Theodorou, Sharmane Good, Dave Burns, Michelle Medeiros and Pearl Baranyl, Respondents
Stephen A. Bernofsky, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability, sex and family status.
2A hearing is scheduled for September 14 and 15, 2015.
REQUEST TO REMOVE PERSONAL RESPONDENTS
3On May 11, 2015, the respondents filed a Request for an Order during Proceedings seeking the removal of the personal respondents.
4Rule 1.7(b) of the Tribunal’s Rules of Procedure 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 (“Persaud”) 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.
6Having reviewed the submissions of the parties, the Tribunal finds that all of the factors in Persaud have been met. The corporate respondent accepts that it is responsible for the actions of the personal respondents and that it will be able to respond to any remedial order that might be made by the Tribunal. The personal respondents were at all times acting within the scope of their employment. Further, no prejudice will result to the applicant from the removal of the personal respondents as parties.
7This is not the type of case where the personal conduct of a named individual is central or might make it appropriate to award a remedy specifically against that individual if an infringement were found; those types of cases typically involve allegations of individual wrong doing such as, for example, allegations of sexual or racial harassment.
8Therefore, the respondents’ Request to remove the personal respondents is granted.
ORDER
9The respondents’ Request to remove the personal respondents is allowed and the style of cause is amended to reflect this change.
10I am not seized.
Dated at Toronto, this 5th day of June, 2015.
“Signed by”
Laurie Letheren
Vice-chair