Dietrich v. Movati Athletic Inc., 2016 HRTO 643

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lorie Dietrich

Applicant

-and-

Movati Athletic Inc.

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: May 12, 2016

Citation: 2016 HRTO 643

Indexed as: Dietrich v. Movati Athletic Inc.

WRITTEN SUBMISSIONS

Movati Athletic Inc. and Kristen Curry , Respondents

Casey Dockendorff, 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. The personal respondent is the Human Resources manager of the corporate respondent and at all times was acting within the course of her employment;

b. The applicant has made no allegations against the personal respondent;

c. The applicant has not made any request for a remedy specifically from the personal respondent, nor would it be appropriate;

d. There is no issue with respect to the corporate respondent’s deemed or vicarious liability; and

e. The personal respondent will be available to testify.

6The applicant did not provide a Form 11 Response to the respondents’ Form 10 Request for an Order.

7Having reviewed the respondents’ submissions, it is my view that the personal respondent should be removed as a respondent.

8As in Persaud, Ms. Curry in this case appears to have been simply carrying out her employment duties. There is nothing to support a finding that it would be appropriate to make an order against Ms. Curry in her personal capacity as well as against the corporate respondent. The applicant makes no allegations specifically against Ms. Curry that would constitute a Code violation.

9In addition, the corporate respondent has accepted vicarious liability in this case.

order

10Ms. Curry is removed as an individual respondent to this Application and the title of proceedings is amended.

11I am not seized of this matter.