Ryan Larcher v. Billy’s Sports Bar and Grill, 2016 HRTO 1356

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ryan Larcher

Applicant

-and-

Billy’s Sports Bar and Grill

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: October 19, 2016

Citation: 2016 HRTO 1356

Indexed as: Larcher v Billy’s Sports Bar and Grill

WRITTEN SUBMISSIONS

Ryan Larcher, Applicant

Self-represented

Billy’s Sports Bar and Grill, Respondent

Jennifer Peace-Hall, Representative

Introduction

1This Interim Decision addresses the Request for Order during Proceeding (Request) filed by the personal respondent requesting that she be removed from the Application.

2The applicant has filed some documents and a Form 11 Response to the Request; however, the documents and the Form 11 appear to be requests for more time to file his own documents and witness statements and his responses to the statements made in the respondents’ witness statements.

3Rule 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.

4The 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.

5The personal respondent submits that she should be removed from the Application as she was not in any position that gave her control over the decisions made that are the subject of this application. She submits that the circumstances of this Application are in line with the factors outlined in Persaud above and therefore she should be removed as a respondent.

6There is no question that the first three factors set out in Persaud are met in this case. The corporate respondent would be liable for the conduct of the personal respondent who was acting within the scope of her employment. There are no allegations made in this Application that would demonstrate that she was acting outside the course of her employment and there are no allegations that would make it appropriate to order a remedy specifically against her.

7The corporate respondent is responsible for ensuring that its employees do not experience a breach of their rights as protected under the Code. The corporate respondent is therefore in the best possible position to remedy the discrimination that the complainant alleges.

8The full range of remedial options that may be available to the applicant would be unaffected by the removal of the personal respondent.

9The 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 respondent. 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 respondent can be called as witnesses.

ORDER

10The Tribunal orders that the personal respondent be removed as a party to this Application and the title of proceeding is amended accordingly.