Dahoui v. Stuart, 2016 HRTO 1283

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ikram Dahoui

Applicant

-and-

Lori Stuart

Respondent

INTERIM DECISION

Adjudicator: Dawn Kershaw

Date: October 3, 2016

Citation: 2016 HRTO 1283

Indexed as: Dahoui v. Stuart

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, RSO 1990, c. H.19 as amended (the “Code”). The purpose of this Interim Decision is to address the individual respondent’s request to remove her as a party to this Application.

background

2The applicant alleges the respondents discriminated against her when in 2014 they decided not to enter into a retail lease with Mr. Said for a booth at the Devonshire Mall because he wanted to employ her.

3The applicant alleges the individual respondent’s decision was predicated not on business reasons but because between 2007 and 2011, the individual respondent took issue with the applicant watching Arabic programs while working in another sales booth at the Devonshire Mall. She alleges this decision was made outside the scope of her employment given the individual respondent’s past issues with her. The applicant further alleges that when she left that mall in 2011, she went to work for Mr. Said at Lambton Mall and the individual respondent tried to get Mr. Said to let her go.

Request to Remove the Individual Respondent

4Rule 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.

5The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

6Applying 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?

7In 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 individual respondent submits that:

a. There is a corporate respondent that is alleged to be liable for the same conduct;

b. There is no suggestion she was acting outside the scope of her employment;

c. There is no issue with respect to the ability of the corporate respondent to remedy any Code violation;

d. There would be no prejudice to the applicant if the individual respondent was removed.

9The applicant did not provide a Form 11 Response to a Request for an Order in response to the individual respondent’s request to be removed as a party, but the applicant included reasons in her Application and Reply with respect to why the individual respondent is a party, as set out in paragraph 3, above.

10Based on the materials before me, it appears that the alleged conduct of the named individual respondent may be central to the Application, particularly in light of the applicant’s allegation that the leasing decision was made for other than business reasons. A two day hearing has been scheduled in this matter for February 15 and 16, 2017, to determine whether the applicant’s allegations regarding the individual respondent’s actions can be made out. In these circumstances, the individual respondent is not removed as a party at this time.

order

11The individual respondent’s request to be removed as a party is denied at this time.

12I am not seized of this matter.