HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Amal Alkishawy
Applicant
-and-
Soler D&V Licensing (Thornhill) Inc., Lori Soler, and Suzanna Szadai
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Alkishawy v. Soler D&V Licensing (Thornhill) Inc.
WRITTEN SUBMISSIONS
Amal Alkishawy, Applicant
No one appearing
Soler D&V Licensing (Thornhill) Inc. and Lori Soler, Respondents
Alex Soler, Representative
Mano Sachithananthan, Respondent
Self-represented
Suzanna Szadai, Respondent
No one appearing
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination with respect to employment because of family status and age.
2This Application concerns the applicant's dismissal from employment at the respondent Soler D&V Licensing (Thornhill) Inc. and her unsuccessful attempt to secure employment with the individual respondent Suzanna Szadai. The hearing of this matter is scheduled for February 5 and 6, 2018.
3On August 5, 2017, individual respondent Mano Sachithananthan filed a Request for an Order During Proceedings seeking an order removing her from the Application. Also on August 5, 2017, the respondents Soler D&V Licensing (Thornhill) Inc. and Lori Soler filed a request to have the matter dismissed because the allegations do not amount to a violation of the Code. The applicant did not respond to the requests and the time for doing so has passed.
Request to Dismiss
4Section 43(2)1 of the Code states as follows:
An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.
Consequently, the Tribunal may not dismiss this Application without first allowing the applicant to make oral submissions. The applicant shall have the opportunity to present her evidence at the hearing on February 5, 2018
, after which the parties may make submission regarding whether the Application should be dismissed. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777. Accordingly, the request to dismiss is denied at this time.
Request to Remove Ms. Sachithananthan
5Ms. Sachithananthan submitted that she is an employee of the organizational respondent, Soler D&V Licensing (Thornhill) Inc., and follows the direction of Lori Soler. Ms. Sachithananthan submitted that the applicant does not allege that she violated her human rights and she asserts that she had no involvement in the decision to dismiss the applicant.
Analysis and Decision
6Rule 1.7(b) of the Tribunal's Rules provides that the Tribunal may add or remove a party. In in Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors to consider in assessing whether a personal respondent should be removed, as follows, at paragraph 5:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
In 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.
7In my view, it is appropriate to remove the individual respondent from this Application. The organizational respondent is vicariously liable for the individual respondent's conduct and no issue has been raised regarding the organizational respondent's ability to remedy any Code breach. While the application refers to Ms. Sachithananthan in the Application, there are no allegations that Ms. Sachithananthan did anything that could amount to a breach of the applicant's rights. Accordingly, I find that there is no compelling reason to continue the proceeding against the individual respondent. The applicant has not identified any prejudice that would result if the individual respondent is removed from the Application.
ORDER
8The Tribunal orders as follows:
The request to dismiss the Application filed by Soler D&V Licensing (Thornhill) Inc. and Lori Soler is denied; and,
The individual respondent is removed from the Application and the style of cause shall be amended accordingly;
9I am not seized.
Dated at Toronto, this 1st day of September, 2017.
"Signed By"
Douglas Sanderson
Vice-chair