Colraine v. Ernst & Young LLP, 2016 HRTO 236

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Colraine

Applicant

-and-

Ernst & Young LLP, Stanislas Faure and Andrew Cosgrove

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: February 24, 2016

Citation: 2016 HRTO 236

Indexed as: Colraine v. Ernst & Young LLP

WRITTEN SUBMISSIONS

Janice Colraine, Applicant

Debbie Jorgensen, Counsel

Ernst & Young LLP, Stanislas Faure and Andrew Cosgrove, Respondents

Catherine Peters, Counsel

1This is an Application filed on January 12, 2015 alleging discrimination with respect to employment because of disability and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the respondents’ request for removal of the personal respondents, which was made in their Response dated March 9, 2015. Consideration of this request was deferred pending mediation, which was held on September 28, 2015. Thereafter, the respondents’ request ought to have been addressed by this Tribunal expeditiously, and I apologize to the parties that this did not happen, particularly in light of the follow-up correspondence sent by respondent counsel on November 27, 2015 and February 2, 2016 and the understandable need for the personal respondents to have a clear understanding of their role in this proceeding in order to make appropriate travel arrangements to attend the hearing from the UK. For my part, I can only say that this matter was assigned to me on February 12, 2016 and I have tried to attend to it as quickly as I could.

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 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.

4The 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 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.

5In the instant case, there is a corporate respondent that is alleged to be liable for the conduct of the personal respondents. While the applicant has submitted that the corporate respondent has not clearly acknowledged its vicarious liability for the conduct of the personal respondents, I disagree. In the Response, the corporate respondent clearly states that it will take responsibility for the alleged conduct of the personal respondents and does not contest that this alleged conduct was in the course and scope of their duties. Further, in my view, there is no real issue as to the corporate respondent’s ability to respond to or remedy the alleged Code infringement. The only remedy sought in the Application specifically against the personal respondents is that they be required to undertake human rights and sensitivity training, particularly in relation to disability issues, which the corporate respondent would be capable of directing them to do if a Code infringement were found and if this were determined to be an appropriate remedy.

6As in many of these cases, the primary issue comes down to a determination as to whether any compelling reason exists to continue the proceeding as against the personal respondents, such as where it is the individual conduct of the personal respondents that is a central issue. In this regard, I hearken back to the language from the Sigrist decision, above, which contrasted such a situation with circumstances where the alleged conduct is more in the nature of an individual following organizational practices or policies.

7I appreciate that there are factual disputes between the parties as to whether or not the personal respondents or either of them engaged in certain conduct, and also as to the nature, if any, of Mr. Cosgrove’s supervisory responsibilities in relation to the applicant. These factual disputes are matters that will need to be resolved on the basis of the evidence led at the hearing.

8At this stage of the proceeding, it is my view that the conduct of both personal respondents is alleged to be a central issue in this proceeding, and that such alleged conduct is not in the nature of these individuals merely following organizational practices or policies.

9With regard to Mr. Faure, he is alleged to have insinuated to the applicant that her position was in jeopardy unless she was able to meet a higher bar at a time after he became aware of her disabilities, to have suggested that she re-consider her role as he did not think she was “up for the job”, and to have made the decision to terminate her employment while she was still on disability leave. I appreciate that these allegations against Mr. Faure are all disputed, but once again the resolution of this dispute will need to be based upon evidence at the hearing. At this stage of the proceeding, in my view, Mr. Faure’s alleged conduct is sufficiently a central issue in the proceeding to warrant him remaining named as a personal respondent.

10With regard to Mr. Cosgrove, I appreciate the respondents’ position that there was no reporting relationship between the applicant and Mr. Cosgrove. I also am aware from the applicant’s Reply that this is contested. In particular, the applicant alleges that Mr. Cosgrove had input into her performance ratings and the possibility of promotion, told members of the applicant’s team that he was their leader, and required the applicant to report to him and interacted with her extensively on work-related matters. Once again, the precise nature of the working relationship between Mr. Cosgrove and the applicant will need to be resolved on the basis of evidence at the hearing.

11The applicant alleges that Mr. Cosgrove told her that she would have to be replaced if she did not return to full-time hours soon after she commenced a graduated return to work after a medical leave, became angry when the applicant went “off-line” while he was still working at a time when the applicant needed to care for her two children, demanded that she type up notes from a conference when she was obviously exhausted, and told the applicant that he wanted “Navy SEALS” on his team which the applicant alleges was a slight against her diminished stamina due to her disabilities. Once again, I appreciate that all of this is disputed by the respondents. However, at this stage of the proceeding, in my view, Mr. Cosgrove’s alleged conduct is sufficiently a central issue in the proceeding to warrant him also remaining named as a personal respondent.

12I appreciate that the respondents have raised an issue regarding the potential enforceability of any award that may be made against these two personal respondents, given that they both reside in the UK. In my view, that is not an appropriate consideration at this stage of the proceeding and in any event is premature.

ORDER

13For all of the foregoing reasons, the respondents’ request for removal of the personal respondents is denied.