HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.N. by Her Litigation Guardian I.G.N
Applicant
-and-
London Disctric Catholic School Board
Respondent
INTERIM DECISION
Adjudicator: David Muir
Indexed as: I.G.N. v. London District Catholic School Board
1The purpose of this Interim Decision is to address the respondents’ Request for Order During Proceeding (“Request”) seeking an Order removing 2 individual respondents as parties to this Application.
2The applicant alleges discrimination in the provision of goods and services because of disability and reprisals. Essentially the applicant alleges that the respondents have failed to accommodate her disability related needs in relation to her education. The respondents deny the allegations of the applicant.
3In her Form 11 Response to the respondent’s Request the applicant sought to add several further individual respondents. Although not made in the proper form this Interim Decision will aslo address the applicant’s Request.
4The respondents’ Request is granted and the applicant’s Request is denied. The style of cause has been amended accordingly.
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 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.
6The 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.
7I am satisfied that the factors outlined in the cases above compel the conclusion that it is appropriate to remove the individual respondents identified in the Request and to deny the applicant’s Request to add several more individual respondents.
8The applicant makes very brief submissions in support of her position. Essentially the applicant claims that the individuals she has identified were front line decision makes and attended the meetings with the respondent Board discussing her disability related needs. The applicant also asserts that these individuals need to learn their responsibilities under the Code and other provincial legislation.
9These are not reasons to include any of the identified individuals.
10Having regard to the factors outline in the cases above. It is clear that the individuals, to the extent that they are referred to in reference to any alleged incident, were acting in the course of their employment. It is also clear that the respondent Board is responsible for those actions and is in the best position to implement any remedy that might be ordered in the event that the applicant is successful. The applicant asserts no prejudice if they are removed. Finally there is no compelling juridical reason to include any of these individuals as parties to the hearing. One or more of them may be witnesses if there is a hearing of this case because they did attend the meetings and participated in the discussions involved in this dispute but these facts do not support their being parties to the proceeding.
11For all of these reasons the respondents’ Request is granted and the applicant’s Request denied.
12I am not seized of this case.
Dated at Toronto, this 21^st^ day of September, 2016.
“Signed By”
David Muir
Vice-chair