Rice v. Net Gravity Commerce Inc., 2016 HRTO 904

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Danielle Rice

Applicant

-and-

Net Gravity Commerce Inc., Ryan Lucier and Jim Laframboise

Respondents

AND BETWEEN:

Giselle Gereige

Applicant

-and-

Net Gravity Commerce Inc., Ryan Lucier and Jim Laframboise

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 11, 2016

Citation: 2016 HRTO 904

Indexed as: Rice v. Net Gravity Commerce Inc.

1This Interim Decision addresses a request to add two individuals as respondents.

2This matter was addressed in a Case Assessment Direction dated June 9, 2016, issued following a day of hearing in Windsor. The Case Assessment Direction said in part:

After the hearing, I issued a Case Assessment Direction that invited the parties to make submissions on the jurisdictional issue. I indicated that I would address the request to amend the Application as necessary after the jurisdictional issue was resolved and that further direction, including the steps to be taken if the applicants wish to amend the Application to include the personal respondents [would be provided]. It is appropriate to determine the question of whether the Application should be amended to add the proposed personal respondents before the hearing is re-scheduled.

Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party to an Application. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at paragraph 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 46.3(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.

The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, with regard to whether personal respondents who have been named in an Application should be removed. At paragraph 5 the Tribunal said:

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?

A factor that may be relevant in the consideration of whether there are compelling reasons to add or remove a personal respondent is whether there is doubt about the ability of the corporate respondent to pay any compensation that may eventually be awarded if there is finding that the applicant’s rights under the Code were infringed (see Ontario Human Rights Commission v. Farris, 2012 ONSC 3876).

The parties may make written submissions about whether Ryan Lucier and Jim Laframboise should be added as personal respondents to the Application. These submissions should be sent to the other party and the Tribunal Registrar by July 5, 2016. I will then make a decision about whether the proposed personal respondents should be added as respondents.

3The applicants filed submissions and the proposed respondents did not.

4The applicants submit that the individuals should be added as personal respondents. The applicants state that when they first filed the Application they wanted to include the two individuals as respondents but were advised not to do so because it could complicate the process.

5The applicants note that all of the allegations concern the conduct of the two individuals and submit that this is a good reason to add them as respondents. In addition, they note that there has been some question about the ability of the corporate respondent to pay any damages if there were a finding of liability.

6In my view, and based on the information that I have received from the parties, I find that it is appropriate to add Ryan Lucier and Jim Laframboise as respondents to the Application.

7As previously directed, the Tribunal will schedule a one-day hearing in Windsor as a reconvening of the hearing.