HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Louise Thomsen
Applicant
-and-
Sault Area Hospital
Respondents
INTERIM DECISION
Adjudicator: David Muir
Indexed as: Thomsen v. Sault Area Hospital
1The purpose of this Interim Decision is to address the respondents’ Request for Order During Proceeding (“Request”). .
2In her Application the applicant alleges discrimination in employment on the basis of disability.
3The respondents filed a Response (Form 2) in which they deny the allegations. The applicant filed a Reply (Form 3).
4The respondent filed a Request seeking the removal of the individual respondent and the dismissal of parts of the Application because the allegations appear to be untimely.
5The Request to remove the personal respondent 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 respondent was acting in the course of her employment implementing corporate policy and not acting in her personal capacity. The respondent states that it can respond to the Application and although not stated explicitly the respondent is responsible for the actions of its manager.
9The applicant argued that the individual respondent is a directing mind of the organization whose conduct gave rise to the need of the applicant to file the Application. The applicant alleges that the conduct of the individual respondent is central to the case.
10I agree with the respondents’ submissions. To the extent that the individual actions of its employee can be identified they are largely related to the implementation of the respondent’s absence management program. Although the policy was implemented through the actions and decisions of its employee there is no allegation that the individual manager was acting on her own beyond the implementation of an existing practice of the employer. In my view, considering all the circumstances, it is not necessary to the fair just and expeditious adjudication of this Application to involve the respondent’s manager as a party in order to have a fair, just and expeditious resolution of the merits of the Application.
11The respondent’s Request to remove its employee as an individual respondent is granted and the style of cause amended accordingly.
THE DELAY ISSUE
12In her Application the applicant refers to events beginning in 2008. It is not clear how at this stage how some of the described events would be considered to be discrimination under the Code, however this may be in part a function of how generally the narrative of the Application is drafted. Having reviewed the Application it appears moreover that the alleged discrimination begins to occur in 2011 with a change in management of the applicant’s employment but again this is not entirely clear. The applicant’s response to the respondent’s Request does not assist in that it tends to suggest that some of these earlier incidents are included as background to more recent events as opposed to incidents of discrimination for which the respondent may be liable. It may be that some of these incidents which may be untimely are matters that will need be canvassed at the hearing in any case as background to later events which form the real subject matter of this dispute, however that is impossible to determine at this stage. I find that it is most fair, just and expeditious to leave this issue to the hearing adjudicator to revisit this issue, if necessary, when the parties have completed their productions to each other and filed their hearing documents with the Tribunal.
NEXT STEPS
13The applicant has agreed to mediation, the respondent has not. If the respondent wishes to attend mediation they should so indicate within 7 days of this Interim Decision failing which this case will be scheduled for a two day hearing in Sault Ste. Marie.
ORDER
14The Tribunal makes the following Orders:
a. The Request to remove the personal respondent is granted and the style of cause amended accordingly.
15I am not seized of this matter.
Dated at Toronto, this 22^nd^ day of July, 2015.
“Signed by”
David Muir
Vice-chair