Searight v. Besma Dental Centre, 2016 HRTO 510

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brenda Searight

Applicant

-and-

Besma Dental Centre a.k.a. N. Rashid Dentistry Professional Corporation

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: April 19, 2016

Citation: 2016 HRTO 510

Indexed as: Searight v. Besma Dental Centre

APPEARANCES

Brenda Searight, Applicant

Self-represented

Besma Dental Centre a.k.a. N. Rashid Dentistry Professional Corporation, Respondent

Warkaa Al- Shukrii, Representative

1This Application filed on February 9, 2015, alleges discrimination with respect to employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2After reviewing the Application and Response, the Tribunal ordered that a preliminary hearing be scheduled to determine whether the Application should be dismissed on the basis that another proceeding has appropriately dealt with the substance of the Application. The other proceeding at issue was the investigation and decision made by an Employment Standards Officer on Claim Number 70143137.

Section 45.1

3Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

4The Tribunal has held that, in determining whether an application ought to be dismissed pursuant to s. 45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether it “appropriately dealt with the substance of the Application”.

5The Tribunal has held that a decision by an Employment Standards Officer is a “proceeding” within the meaning of s. 45.1. See Law v. Noonan, 2013 HRTO 437. However, I am not satisfied that the substance of this Application was appropriately dealt with in the Employment Standards Act (“ESA”) proceeding.

6The applicant’s ESA claim raised the issues of whether she should receive:

• Unpaid wages

• Vacation Pay

• Termination Pay

• Severance Pay

• Reprisal

7The incidents that the Employment Standards Officer addressed in her investigation and decision occurred between March 2014 and August 2014. The focus of the investigation was on the issue of whether the applicant had been terminated from her employment or was on a leave of absence. The Employment Standards Officer investigated incidents that occurred around the time the applicant had an absence from the respondent’s office in April 2014 and the interactions between the parties following the commencement of that absence. The Employment Standards Officer determined that no termination of the applicant’s employment had occurred.

8The Application raises allegations of a failure to accommodate the applicant during the period of time from June 2013 to April 2014. Other than noting the correspondence between the parties in which this issue of the duty to accommodate is mentioned, the Employment Standards Officer did not investigate any allegation of a failure in the duty to accommodate and did not make any determination on that issue.

9For these reasons, I find that the ESA proceeding did not appropriately deal with the substance of this Application.

10The Application shall proceed. The issue of the timeliness of some of the allegations may be addressed by the hearing adjudicator.

Removal of Personal Respondent

11The applicant named an individual who is an employee of the corporate respondent as a second respondent to this Application.

12Rule 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.

13The 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.

14There is no question that the first three factors are met in this case. The corporate respondent is in the best possible position to remedy the discrimination that the applicant alleges she experienced as a result of the respondent’s failure to accommodate her disability related needs.

15I find that the remaining factors in Persaud have also been met. The corporate respondent, which is the employer of the individual respondent, is also alleged to have breached the applicant’s Code rights. In accordance with s. 46.3(1) of the Code, any alleged act of discrimination by an employee, is deemed to be an act of the corporation. The personal respondent was acting within the scope of her job duties during the incidents described in the Application in which she is alleged to have been involved.

16The Application 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.

17The 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 individually named respondent. The applicant would not be prejudiced by the decision to remove the individually named respondent. The applicant’s right to a full hearing on the merits will not be affected as the individually named respondent can be called as witness.

ORDER

18The Registrar will schedule two hearing days for the hearing of the merits of this Application.

19The individually named respondent shall be removed as a party to this Application and the title of proceeding is amended accordingly.

20I am not seized.