African Canadian Legal Clinic v. Legal Aid Ontario, 2016 HRTO 925

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

African Canadian Legal Clinic Applicant

-and-

Legal Aid Ontario Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 14, 2016 Citation: 2016 HRTO 925 Indexed as: African Canadian Legal Clinic v. Legal Aid Ontario

WRITTEN SUBMISSIONS

African Canadian Legal Clinic, Applicant Margaret Parsons, Counsel

Legal Aid Ontario and Bob Ward, Respondents Alix Herber, Counsel

1This Interim Decision addresses the respondents’ request to remove the personal respondent as a party to this Application.

2In the Application, the applicant alleged that the respondents discriminated against it because of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that the respondent discriminated against it during lease expense negotiations in the Spring of 2014, among other things through the discriminatory application of leasing guidelines.

Request to remove personal respondent

3The applicant named Legal Aid Ontario as an organizational respondent. It also named the organizational respondent’s President and Chief Executive Officer as a personal respondent to the Application. By Request for Order During Proceedings (“RFOP”), the respondents requested that the Tribunal remove the personal respondent from the Application. The applicant opposed this request.

4Rule 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 cautioned that the unnecessary naming of personal respondents is a practice to be discouraged, as it serves to unnecessarily add to the complexity of proceedings.

5In determining whether it is appropriate to remove a personal respondent, the Tribunal has consistently applied the following factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

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?

6The respondents submit that:

a. The corporate respondent is able to respond to all allegations and would be vicariously liable for the conduct of the personal respondent;

b. The personal respondent had no direct dealings or communications with the applicant with respect to the leasing issues giving rise to the Application;

c. The corporate respondent is able to respond or remedy any alleged violation of the Code;

d. There are no compelling reasons to continue the Application against the personal respondent because his individual conduct is not at issue and there are no specific allegations about his conduct that would warrant his inclusion as a party;

e. The applicant would suffer no prejudice if the personal respondent was removed. The applicant is not seeking a remedy only the personal respondent can provide and the Application does not include allegations relating to actions taken by the personal respondent in his personal capacity.

7The main submissions made by the applicant in favour of retaining the personal respondent are:

a. the personal respondent is the directing mind of the corporate respondent;

b. the corporate respondent would not be liable for any acts or omissions of the personal respondent taken outside the scope of his grant of authority; and

c. the applicant has sought an apology from the personal respondent as a remedy in this case.

8Applying the factors set out in Persaud, above, I find that the personal respondent should be removed from this Application. I see no compelling reason to continue the proceeding against the personal respondent. While the applicant claims that there are real issues as to the organizational respondent’s liability for the conduct of the personal respondent, the organizational respondent has conceded that it would be vicariously liable for the personal respondent’s conduct. Although the applicant claims that the personal respondent’s conduct is a central issue in these proceedings, the only reference to the personal respondent in the Application is a sentence that states that he approved all decisions of the organizational respondent. It its Response to the respondents’ RFOP, the applicant stated that the personal respondent sent letters directly to the applicant and other clinics about the a Transformation Project and cost cutting measures. In my view, this conduct would not give rise to personal liability under the Code as they are actions taken within the course of the personal respondent’s employment. The applicant has pointed to no actions taken by the personal respondent that could arguably be seen as exceeding the scope of his employment responsibilities.

9The circumstances of this case are distinguishable from those in African Canadian Legal Clinic v. Legal Aid Ontario, 2010 HRTO 1255 as that case involved allegations of racial profiling. The Tribunal found that, if the applicant’s allegations of racial profiling were established, it could give rise to a remedy against the personal respondents. The circumstances of this case are very different. This Application deals with alleged differential treatment in the application of leasing guidelines and the conduct of leasing negotiations. In my view, none of the actions alleged by the applicant would give rise to a personal remedy against the personal respondent.

10Even if the personal respondent is a directing mind of the organizational respondent, there must be a compelling reason to retain him as a personal respondent. In this case, there is nothing in the Application that could reasonably support the claim that the personal respondent was acting beyond the scope of his duties as president and chief executive officer of the organizational respondent when he carried out the allegedly discriminatory actions in this case.

11Finally, I find that no prejudice would be caused to the applicant by removing the personal respondent since the organizational respondent would be deemed liable for any breaches of the Code arising from alleged actions of the personal respondent in this case. As well, the only remedy the applicant seeks from the personal respondent is an apology which is a remedy that this Tribunal has consistently declined to award. See, for example, Turnbull v. Famous Players 2001 CanLII 26228 (HRTO); Abdallah v. Thames Valley District School Board, 2008 HRTO 230 at para. 110; and Welykyi v. Rouge Valley Co-operative Homes Inc., 2016 HRTO 299.

ORDER

12For the above reasons, the respondents’ request to remove the personal respondent is granted. The style of cause shall be amended accordingly.