Pilin v. Family Physiotherapy Centres, 2016 HRTO 626

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elena Pilin

Applicant

-and-

Family Physiotherapy Centres and Steve Brown

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 10, 2016

Citation: 2016 HRTO 626

Indexed as: Pilin v. Family Physiotherapy Centres

WRITTEN SUBMISSIONS

Elena Pilin, Applicant

Self-represented

Family Physiotherapy Centres and Steve Brown, Respondents

Carolyn Dunlop, 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”). The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondent as a party to this Application.

Request to Remove the Individual Respondents

2Rule 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.

3The 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?

4In 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.

5The respondents submit that:

a. There is a corporate respondent in the Application that would be vicariously liable for any alleged violations of the Code.

b. There is no question with respect to the ability of the corporate respondent to respond or remedy any alleged violation of the Code;

c. There is no compelling reason to continue the Application against the personal respondent because his actions were professional and in keeping with the Code;

d. The applicant has provided no facts that suggest the personal respondent was acting outside his capacity as the chief executive officer and president of the corporate respondent, nor that his conduct was so egregious as to warrant relief against him personally;

e. The applicant would suffer no prejudice if the personal respondent was removed.

6The applicant submits:

a. As a former Controller of Family Physiotherapy Centres, the applicant doubts the corporate respondent’s ability to remedy the alleged Code infringements; and

b. The personal respondent’s conduct was not professional and in keeping with his obligations under the Code and was egregious enough to warrant a remedy against him personally because in the applicant’s view, his conduct caused her some mental health issues, and in addition, after the applicant’s leave of absence for health reasons, the personal respondent terminated her employment.

7Having reviewed the parties’ submissions, it is my view that the personal respondent should not be removed as a respondent.

8Unlike the facts in Persaud, Mr. Brown is not alleged to be acting solely as an “instrument” of the organizational respondent by simply carrying out its decision. The applicant alleges he discriminated against her as the person who made the decision to terminate her. The role of Mr. Brown, if any, in the events leading to the applicant’s termination is a question of fact to be determined by the hearing adjudicator on the basis of the evidence. If an infringement is found, it may be appropriate to make an order against Mr. Brown in his personal capacity as well as against the corporate respondent.

9In addition, the respondents disclose financial difficulties in their Response. As such, the applicant’s concern that the corporate respondent may not be able to remedy any Code violation may be well-founded.

10Accordingly, I decline to exercise my discretion to remove Mr. Brown as an individual respondent to this Application.

11I am not seized of this matter.