Willaert-Ragany v. Canadian Federation of Independent Business, 2016 HRTO 1265

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kirsty Willaert-Ragany Applicant

-and-

Canadian Federation of Independent Business, Tina Groulois, Jeff Regier, Paul Leo and Lew Miller Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott Date: September 28, 2016 Citation: 2016 HRTO 1265 Indexed as: Willaert-Ragany v. Canadian Federation of Independent Business

WRITTEN SUBMISSIONS

Kirsty Willaert-Ragany, Applicant Self-represented

Canadian Federation of Independent Business, Tina Groulois, Jeff Regier, Paul Leo and Lew Miller, Respondents Michelle MacGillivray, Counsel

Introduction

1The applicant alleges that she was discriminated against in her employment on the basis of disability. As part of the alleged discrimination, the applicant asserts that the individual respondents made discriminating and degrading comments about her mental health.

2The respondents have filed a Request for Order During Proceedings requesting the removal of the individual respondents.

3The applicant opposes the removal of the individual respondents.

DECISION AND ANALYSIS

Removal of Individual 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 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 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.

6On the face of the Application, it is apparent that the conduct of the individual respondents is a central issue in this case. The applicant alleges that she was subject to discriminating and degrading comments (harassment) by the individual respondents. At this stage in the proceedings, it is unclear whether these comments were made and if so, whether they are discriminatory. In the event the applicant’s harassment allegations are substantiated, a remedy may be sought against the individual respondents regardless of the fact that the corporate respondent is a party and able to remedy any discrimination that may be found. Further, if harassment is found, the individual respondents would not be acting within the course of their employment. For these reasons, it would not be appropriate to remove the individual respondents at this time.

DECISION

7The respondents’ request to remove the individual respondents is denied.