Hardinge v. Hamilton Health Sciences Corporation, 2016 HRTO 1503

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan Hardinge

Applicant

-and-

Hamilton Health Sciences Corporation, Jana Bergin and Denise Riggs

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: November 24, 2016

Citation: 2016 HRTO 1503

Indexed as: Hardinge v. Hamilton Health Sciences Corporation

WRITTEN SUBMISSIONS

Susan Hardinge, Applicant

Brenda Culbert, Counsel

Hamilton Health Sciences Corporation, Jana Bergin and Denise Riggs, Respondents

Matthew J. Mihailovich 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 harassed her and made inappropriate, derogatory comments and inferences about her medical history.

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.

6Without commenting on the likelihood that the applicant will be able to prove her allegations of harassment and discrimination, it is clear that the conduct of the individual respondents is a central issue in this Application. If the allegations against the individual respondents are substantiated, the Tribunal may consider ordering a remedy against them personally, despite the fact that the organizational respondent may also be vicariously liable for their conduct. Further, if the allegations are proven, the nature of the conduct could take the individual respondents outside of the provisions of 46.3(1) if they are found to be acting outside of the course of their employment. For these reasons, it would not be appropriate to remove the individual respondents at this time.

7The respondents have also requested that the allegations against the individual respondents be dismissed for failure to establish a prima facie case. What the respondent is referring to is an evidentiary burden not a basis for dismissal prior to hearing evidence. The test the Tribunal applies at a summary hearing stage, prior to hearing evidence, is the test of “no reasonable prospect of success.” This Application is not appropriate for a summary hearing.

DECISION

8The respondents’ requests to remove the individual respondents or in the alternative, dismiss the allegations against the individual respondents, are denied.