Coates v. Brock University, 2017 HRTO 1165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ioana Coates

Applicant

-and-

Brock University

Respondent

B E T W E E N:

Mason Coates

Applicant

-and-

Brock University

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: September 8, 2017

Citation: 2017 HRTO 1165

Indexed as: Coates v. Brock University

WRITTEN SUBMISSIONS

Ioana Coates and Mason Coates, Applicants

Lisa Triano, Counsel

Jody Katz, Respondent

Mark Donald, Counsel

1The purpose of this Interim Decision is to address the personal respondent’s request that the Tribunal remove her as a respondent to the Application.

2The applicants filed Applications alleging discrimination because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (“Code”). The Application filed by Mason Coates also alleged sexual solicitation or advances by the personal respondent.

Request to Remove the Personal Respondents

3Rule 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.

4The 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?

5In 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 Application.

6In all the circumstances, I find that it is appropriate to remove the personal respondent from the Application. The only allegations in the Applications for which the personal respondent’s conduct can be said to be a “central issue” were the allegations raised by Mason Coates relating to sexual solicitation or advances. Those allegations were dismissed as untimely by the Tribunal in Interim Decision, 2017 HRTO 135. I am not persuaded that the personal respondent’s conduct, in particular, is a “central issue” with respect to the disability and reprisal allegations in the Applications. I also do not agree that the applicants will be prejudiced by the removal of the personal respondent as any of the parties will have the ability to summons her to be a witness at the hearing, if they wish.

ORDER

7For the above reasons, the personal respondent’s request to be removed as a respondent is granted. The style of cause will be amended accordingly. The Tribunal is currently scheduling a hearing of these Applications. It will advise the parties of the date, time and location of the hearing by Notice of Hearing.

8I am not seized.