HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
T. B-D, as represented by her litigation guardian C.B.
Applicant
-and-
Hamilton-Wentworth Catholic District School Board
Respondent
INTERIM DECISION
Adjudicator: Jennifer Khurana
Indexed as: T. B-D. v Hamilton-Wentworth Catholic District School Board
WRITTEN SUBMISSIONS
T. B.-D., as represented by her litigation Guardian C.B., Applicant
Self-represented
Hamilton-Wentworth Catholic District School Board, Respondent
Jennifer Zdriluk, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”), alleging discrimination in the provision of services because of disability. The applicant’s mother, who is her litigation guardian, makes this Application on behalf of her daughter.
2The applicant is a minor with a disability who was a student at St. John the Baptist Catholic Elementary School (“the school”). The applicant named the school and also named Carla Persia as an individual respondent. Ms. Persia is a learning resources teacher at the school and provided services to the applicant as part of a team. The applicant’s mother filed an Application against the school and Ms. Persia alleging that they harassed her and treated her in a discriminatory manner due to her mental health condition and/or due to her daughter’s disability. The applicant’s mother alleges that she was subject to heightened scrutiny of her parenting practices and that a number of comments and interventions by the respondents were discriminatory.
3This Interim Decision determines the respondents’ Request for Order During Proceedings (“Request”) to remove the individual respondent as a party to the Application. The applicant did not respond to the Request.
REMOVAL OF 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:
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?
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 respondents submit that Ms. Persia is an employee of the school that is a party to the proceeding and that is prepared to accept liability for any eventual finding of discrimination. They further submit that the individual respondent was at all times acting in the scope of her duties as an employee of the school and that there is no compelling reason to continue with the proceeding as against Ms. Persia in her individual capacity.
9I agree with the respondents’ submissions. I am unable to find a compelling reason not to remove the individual respondent as a party to the Application. There is no issue raised as to the school’s liability for the conduct of its employee. There is neither any issue as to the ability of the school to respond to or remedy the alleged Code infringements and the applicant does not request a remedy as against the individual respondent. I acknowledge that the applicant makes several allegations relating to discriminatory comments and harassment against Ms. Persia specifically. Yet the facts as alleged do not indicate that the individual respondent was acting outside the scope of her duty as a staff member of the school.
10The request to remove the individual respondent is granted. The style of cause shall be amended accordingly.
NAMING OF ORGANIZATIONAL RESPONDENT
11In the Response, the organizational respondent indicates that it is an elementary school within the Hamilton-Wentworth Catholic District School Board (HWCDSB). Accordingly it does not appear that the school is a legal entity and the proper organizational respondent is the HWCDSB. I have amended the style of cause accordingly.
12I am not seized.
Order
13The Tribunal orders as follows:
a. The Request to remove the individual respondent Carla Persia is granted and the style of cause is amended accordingly; and
b. The style of cause is amended to identify the respondent as the Hamilton-Wentworth Catholic District School Board.
Dated at Toronto, this 8th day of December, 2016.
“Signed By”
Jennifer Khurana
Vice-chair