HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Cindie O’Brien
Applicant
-and-
Revera Long Term Care Inc. c.o.b as Stirling Heights
Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: O’Brien v. Revera Long Term Care Inc. operating as Stirling Heights
INTRODUCTION
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.
2The applicant has filed a Request for Order During Proceedings (Request) to add Revera Long Term Care Inc. c.o.b as Stirling Heights (“Revera”) as a organizational respondent and to remove the personal respondent that was originally named. She states that when she filed her Application she did not have legal advice and she assumed that the personal respondent she named would have sole responsibility for her actions which the applicant alleges to be breaches of her Code rights.
3The applicant submits that it is clear that at all times the individual who she had named as a respsondent was acting in the course of her employment. Revera is this individual’s employer and is therefore responsible for the actions of its employees and can respond to the allegations and any remedy that may be ordered.
4The applicant submits that Revera would not be prejudiced by being added at this point.
5Neither Revera nor the originally named individual respondent have filed a Response to this Request although they did receive a copy of the Request.
ANALYSIS AND DECISION
6Rule 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 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 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.
7In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out at paragraph 12 the factors to consider when deciding whether to add a respondent, as follows:
a. Are there allegations made that could support a finding that the proposed respondent violated the Code?
b. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
c. Would it be fair, in all the circumstances, to add the proposed respondent?
Section 46.3(1) states as follows:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
8The allegations made by the applicant are with respect to an employment competition. The Response filed indicates that the individual who was originally named as a respondent was acting in the course of her employment during her interactions with the applicant. There are no allegations made that would raise the issue of whether section 46.3 is excepted from application. Under section 46.3 the acts of the individual employee would be deemed to be the acts of Revera.
9The Response was filed by legal counsel at Revera. It is therefore aware of the allegations made in this Application. Revera has not claimed that it would be prejudiced if it were added at this point.
10Given that Revera is the employer of the individual who was originally named as the respondent and had notice of the Application; and the fact that Revera does not object to the Request or claim to be prejudiced by the Request, it is appropriate to add Revera as a respondent because there are allegations made that could support a finding that it violated the Code.
ORDER
11The Tribunal orders that:
a. the applicant’s request to amend her Application to add Revera Long Term Care Inc. c.o.b as Stirling Heights as a respondent is granted;
b. the applicant’s request to amend her Application to remove the individual respondent is granted;
c. the applicant shall deliver her amended Application to Revera no later than September 29, 2017, and shall file it and a Form 23 Statement of Delivery with the Tribunal;
d. should Revera wish to file an amended Form 2 Response, it should do so within 30 days of the day it receives the amended Application, and shall file it and a Form 23 Statement of Delivery with the Tribunal; and
e. the applicant shall file any Form 3 Reply in response to Revera’s Form 2 Response within 20 days of the day she received the amended Response, and shall file it and a Form 23 Statement of Delivery with the Tribunal.
12I am not seized.
Dated at Toronto, this 15th day of September, 2017.
“Signed by”
Laurie Letheren
Vice-chair