HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tammy Papineau
Applicant
-and-
Silver Management Group Inc.
Respondent
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Papineau v. Silver Management Group Inc.
WRITTEN SUBMISSIONS
Tammy Papineau, Applicant
Self-represented
Silver Management Group Inc., Respondent
Andrew Lister, Counsel
Introduction
1The applicant alleges that she was terminated from her employment because her daughter, who worked for the same corporate respondent, filed an application with the Tribunal.
2This Interim Decision addresses several outstanding preliminary issues filed by the parties and raised by the Tribunal. They are as follows:
a. The Tribunal raised the issue of whether the Application should be deferred pending resolution of an Employment Standards Act (“ESA”) claim;
b. The applicant has asked to amend the remedies sought in the Application;
c. The respondent has asked that the individual respondent, Howard Silver, be removed as a party.
deferral
3The Tribunal may defer consideration of an application on such terms as it may determine (Rule 14.1 of the Rules of Procedure). Deferral of an application ensures that legal processes dealing with the same issues do not run concurrently. It is not automatically invoked simply because the parties are involved in other legal processes, but is a discretionary measure that the Tribunal exercises on the basis of the circumstances of each case.
4Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding.
5There is no information before me regarding the nature of the ESA claim. Although the respondent indicated there was an outstanding claim, it did not request deferral of the Application. The applicant opposes deferral. In the absence of any information about the ESA claim, I cannot determine that deferral is appropriate. As such, the Application will not be deferred.
Amend Application
6When deciding requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent.
7Having considered the factors set out above, I grant the applicant’s request to amend the remedies sought in her Application. This Application is at a very early stage of proceedings. Therefore, I see no prejudice to granting the applicant’s request to amend the remedies she is seeking. The Tribunal has regularly granted such requests in past decisions up to the date of the hearing. See, for example, Marino v. Compuware Corporation of Canada, 2011 HRTO 1390, and Loney v. Combusco Enterprises, 2011 HRTO 1050.
8This remedial amendment is made without any determination by the Tribunal as to the appropriateness of the remedies sought, and without to any position the respondent may wish to take regarding this issue.
Remove Individual Respondent
9The respondent has asked the Tribunal to remove the Howard Silver as an individual respondent.
10Rule 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.
[1] The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, [2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31) at para. [5](https://www.minicounsel.ca/hrto/2008/31), the relevant portions of which are attached:
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:
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.
11The Application involves the termination of the applicant’s employment by the corporate respondent. The applicant alleges her employment was terminated because of her daughter’s application to the Tribunal. The appropriate respondent for this allegation is the corporate respondent.
12The Application states the individual respondent berated and cursed at other employees, refused to speak to the applicant for three days, and was cold towards her. There is no assertion that the applicant was treated in this way because of a prohibited ground of discrimination. In light of this, I find that Howard Silver’s conduct is not central to this case and that it is not appropriate to have him named as a respondent to this proceeding.
order
13I make the following orders:
a. The applicant’s request to amend the remedies sought in the Application is granted.
b. The respondent’s request to remove Howard Silver as an individual respondent is granted. The style of cause is amended accordingly.
Dated at Toronto, this 16th day of September, 2016.
“Signed By”
Jennifer Scott
Vice-chair