HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Anderson
Applicant
-and-
Centennial College of Applied Arts & Technology and Paladin Security Group Ltd.
Respondents
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Anderson v. Centennial College of Applied Arts & Technology
WRITTEN SUBMISSIONS
Michael Anderson, Applicant
Self-represented
Centennial College of Applied Arts & Technology, Respondent
Lauren Cowl, Counsel
Paladin Security Group Ltd., Respondent
William D. Anderson, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of race, colour and ethnic origin.
2The Application was filed on March 7, 2016. In addition to the organizational respondents, two individual respondents were named in the Application.
REMOVAL OF PERSONAL RESPONDENTS
3The respondent, Centennial College of Applied Art & Technology (“Centennial”), made Request for Order During Proceedings (Request) to remove the personal respondents.
4Centennial submits that it is unnecessary to have the personal respondents included as parties in order to have fair, just and expeditious resolution to this Application. Both the corporate respondents named are responsible for the conduct of their employees during the course of their employment.
5Centennial further submits that the Application does not detail any general or specific allegations regarding one of the personal respondents. At all material times, the personal respondents were acting in the course of their employment as employees of the corporate respondents. Under section 46.3 of the Code, the actions of the personal respondents are deemed to be the actions of the corporate respondents.
6The applicant did not file any response to the Request and the time to do so has now passed.
Analysis and Decision
7Rule 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.
8The 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:
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.
9Having reviewed the Application, Response, and the submissions, the Tribunal finds that all of the factors in Persaud have been met. The corporate respondents, who are the employers of the personal respondents named in the Application, are also alleged to have breached the applicant’s Code rights. In accordance with section 46.3 (1) of the Code, any alleged act of discrimination by an employee of the corporation, is deemed to be an act of the corporation. The personal respondents were at all times acting within the scope of their job duties. There is no concern that the corporate respondents will be unable to respond to or remedy the alleged Code infringements.
10This narrative does not describe any incidents where the personal conduct of a named individual is central or might make it appropriate to award a remedy specifically against that individual if an infringement were found; those types of cases typically involve allegations of individual wrongdoing such as, for example, allegations of sexual or racial harassment.
11There does not appear to be any prejudice to the applicant that would result from the removal of the personal respondents. These individuals can still be called as witnesses to testify at the hearing of the Application.
12I find that it is appropriate to remove the personal respondents from the Application.
ORDER
13The personal respondents are removed as respondents from this Application and the style of cause is amended to reflect this change.
14I am not seized.
Dated at Toronto, this 27th day of October, 2016.
“Signed By”
Laurie Letheren
Vice-chair