Smith v. McMaster University, 2017 HRTO 1122

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amy Smith Applicant

-and-

McMaster University and Mohawk College Respondents

INTERIM DECISION

Adjudicator: Yasmeena Mohamed Date: August 30, 2017 Citation: 2017 HRTO 1122 Indexed as: Smith v. McMaster University

WRITTEN SUBMISSIONS

Amy Smith, Applicant Self-represented

McMaster University, Sharon Baptist, Shelley Omand and Liz Reeves Respondents Jennifer Bernardo, Counsel

Mohawk College, Luba Raso, Maria Bargeman, Donna Rawlin, Diane Harrison, Darlene Sheremet and Nancy Mathews-Maich, Respondents Patricia G. Murray, Counsel

1The applicant alleged that the respondents discriminated against her because of her family and marital status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The applicant alleged that the respondents failed to provide her with appropriate accommodation for her child care needs, given her circumstances as the sole caregiver and provider for her children.

2In addition to naming two corporate respondents, McMaster University ("McMaster") and Mohawk College ("Mohawk"), the applicant named nine personal respondents, Sharon Baptist, Shelley Omand, Liz Reeves, Luba Raso, Maria Bargeman, Donna Rawlin, Diane Harrison, Darlene Sheremet and Nancy Mathews-Maich, all of whom were, at all material times, employees of either McMaster or Mohawk.

removal of personal respondents

3McMaster requested that the Tribunal remove personal respondents, Sharon Baptist, Shelley Omand and Liz Reeves ("McMaster respondents") from the proceedings. Mohawk requested that the Tribunal remove personal respondents, Luba Raso, Maria Bargeman, Donna Rawlin, Diane Harrison, Darlene Sheremet and Nancy Mathews-Maich ("Mohawk respondents") from the proceedings. For the reasons set out below, I grant McMaster and Mohawk's requests.

4The Tribunal has consistently cautioned against the unwarranted naming of personal respondents to applications. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14, the Tribunal stated as follows at para. 42:

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.

5The Tribunal has generally considered the following factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5, in deciding whether to remove a personal respondent from a proceeding:

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?

6McMaster submits that at all material times the McMaster respondents were employees of McMaster and their interactions and/or communications with the applicant were made within the scope of their employment. Mohawk similarly submits that at all material times the Mohawk respondents were employees of Mohawk and that their involvement in reviewing, assessing and responding to the applicant's accommodation requests were within the scope of their employment. McMaster and Mohawk submit that, as corporate respondents, they are vicariously liable for the conduct of their employees. McMaster and Mohawk submit that they are both capable of responding to and remedying any alleged wrongdoing on the part of their employees and hence no prejudice will result to the applicant, if the nine personal respondents are removed from the proceeding. McMaster and Mohawk submit that there are no compelling reasons to keep the nine personal respondents in the matter and failure to remove them will unnecessarily complicate the matter.

7The applicant did not respond to McMaster and Mohawk's request to remove the nine personal respondents and the time for doing so has expired.

8I find it unnecessary to address all of the factors set out in Persaud, above. There are two corporate respondents, McMaster and Mohawk, both of whom have accepted vicarious liability and their ability to meet any remedy has not been challenged. Even if it were the case that all of the nine personal respondents participated in the alleged failure to accommodate, that is not enough to maintain them as personal respondents. I am persuaded that the conduct that the applicant complains of by the nine personal respondents was done in the course of their employment at either McMaster or Mohawk. In addition, I see no compelling reason to involve these nine personal respondents for the applicant to have a fair hearing of her case. McMaster, Mohawk and\or the applicant can call these nine personal respondents as witnesses if they wish. There is no need to involve them further as personal respondents.

order

9For the reasons set out above, the following individuals are removed as personal respondents in this case: Sharon Baptist, Shelley Omand, Liz Reeves, Luba Raso, Maria Bargeman, Donna Rawlin, Diane Harrison, Darlene Sheremet and Nancy Mathews-Maich. The style of cause is amended accordingly.