McKenzie v. Hamilton (City), 2016 HRTO 1068

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Debbie McKenzie Applicant

-and-

City of Hamilton Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: August 11, 2016 Citation: 2016 HRTO 1068 Indexed as: McKenzie v. Hamilton (City)

WRITTEN SUBMISSIONS

Debbie McKenzie, Applicant Ayoob Hameed, Representative

City of Hamilton, Respondent Lennie Lejasisaks, Counsel

Introduction

1This Interim Decision addresses the Request for Order during Proceeding (Request) filed by the respondent to remove the personal respondents.

2The applicant filed a Response to the Request.

3The applicant alleges that the personal respondents created a poisoned work environment for her and engaged in discriminatory behavior through differential treatment because of her race and colour, and through the failure to accommodate her disability.

4The corporate respondent acknowledges that, at all material times, the personal respondents were its employees and were acting within the course of their employment. The corporate respondent submits that it would be liable if it were found that the conduct of the personal respondents is a violation of the applicant’s rights under the Code.

5Rule 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 (“Sigrist”) 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 [46.3(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.

6The 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:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. 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.

7The applicant submits that the individuals should remain as named respondents. The applicant submits that the Tribunal’s reasoning in Madhani v. Sears Canada Inc., 2013 HRTO 290 which considered the Ontario Divisional Court’s decision in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.) (“Farris”) should be applied in this Application. It is the applicant’s position that the Tribunal has dismissed the relevance of Sigrist and Persaud in following Farris.

8I do not find that the Farris decision is relevant to this Application. In Farris, the Court was not determining the issue was whether to remove personal respondents. In that case, the issue was whether some of the personal respondents, who were the principals and managers of the corporate respondent and the only shareholders of the holding company that owned the corporate respondent, should have been found jointly and severally liable with the corporate respondent.

9I find that the principles set out in Persaud should continue to be considered when addressing the issue of removal of personal respondents. These principles continue to be applied by the Tribunal: See the recent decisions Dietrich v. Movati Athletic Inc., 2016 HRTO 643 and African Canadian Legal Clinic v. Legal Aid Ontario, 2016 HRTO 925

10There is no question that the first three factors set out in Persaud are met in this case. The corporate respondent has submitted that it would be liable for the conduct of the personal respondents who were acting within the scope of their employment. The corporate respondent further submits that it is its responsibility, not that of the individual respondents, to ensure an employee is accommodated and to provide training. It therefore is in the best possible position to remedy the discrimination that the complainant alleges.

11The full range of remedial options that may be available to the applicant would be unaffected by the removal of the individual respondents. In addition to monetary compensation, the applicant has requested a human rights training, the placement of brochures and the development of human rights policies. I agree that the corporate respondent is in the best position to provide these remedies should they be ordered.

12The role of the Tribunal is to ensure a fair, just and expeditious process for bringing this Application to a final conclusion. In my view, those important objects can be achieved by removing the personal respondents. The applicant would not be prejudiced by the decision to remove them. The applicant’s right to a full hearing on the merits will not be affected as the personal respondents can be called as witnesses.

13The applicant submits that section 46.3(1), which deems the corporation to be liable for the acts of its employees, does not apply in this Application as the allegations are mainly based on sections 2(2) and 5(2) of the Code.

14Subsection 2(2) covers harassment in accommodation and I find that there are no allegations of discrimination in the context of accommodation. All the allegations relate to employment. Subsection 5(2) covers allegations of harassment in employment. Harassment is defined in section 10 as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. There are no allegations in the Application that could be found to be vexatious comment or conduct.

15The applicant alleges that the personal respondents created a poisoned work environment. Under this Tribunal’s jurisprudence, a poisoned work environment has been regarded as a form of discrimination, by essentially making it a term or condition of a person’s employment that they must endure a poisoned environment, which is protected under s. 5(1) of the Code. See: Taucar v. University of Western Ontario, 2015 HRTO 257 para 14.

16I find that 46.3 of the Code applies in this application and as stated above, the corporate respondent would be liable for any finding that the conduct of the personal respondents violated the applicant’s Code rights.

ORDER

17The Tribunal orders that the personal respondents be removed as a party to this proceeding and the title of proceeding is amended accordingly.