HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
M.M. by his Litigation Guardian M.K.
Applicant
-and-
Thames Valley District School Board
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: M.M. v. Thames Valley District School Board
WRITTEN SUBMISSIONS
M.M. by his Litigation Guardian M.K., Applicant
Self-represented
Thames Valley District School Board and Lisa Fleet, Respondents
Lorraine J. Por, Counsel
INTRODUCTION
1This is an Application filed on November 24, 2016, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination with respect to goods, services and facilities on the basis of disability.
2On May 8, 2017, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) indicating that it appears the Application is outside the Tribunal’s jurisdiction as filed against the personal respondent, Lisa Fleet, because a civil proceeding, Small Claims Court number SC16000015180000, has been commenced in a court in which an order under section 46.1 of the Code is requested and the proceeding has not been finally determined or withdrawn.
3On May 11, 2017, the applicant’s litigation guardian filed submissions arguing that the civil case is against the personal respondent and the superintendent of the corporate respondent for the personal damage their actions caused to the applicant’s litigation guardian and not to the applicant himself. The applicant’s litigation guardian suggests that there is no precedent in the civil action, as she is asking that the personal respondent be held personally responsible for her actions and damages to a parent, not the student/applicant in question.
4The Tribunal issued a Case Assessment Direction (“CAD”) on June 21, 2017, directing the parties to file written submissions on whether the Application should be deferred pending the conclusion of the Small Claims Court proceeding.
5On July 12, 2017, the respondents filed a Request for an Order During Proceedings requesting that the individual respondent be removed because Deputy Judge Lockwood dismissed the claim against the individual respondent in the Small Claims Court matter SC16000015180000.
6The respondents also argue that the corporate respondent is deemed liable for the actions of the individual respondent and as a result she should be removed as a party.
7On July 12, 2017, the applicant filed a Request for a Tribunal Ordered Inquiry for the transcript of the Deputy Judge Lockwood’s reasons for dismissing the claim against the individual respondent. The applicant argues that the corporate respondent would not be deemed liable for the harassment caused by the individual respondent. He further maintains that Deputy Judge Lockwood’s reasons are necessary to determine whether another proceeding has appropriately dealt with the substance of the Application.
8On August 23, 2017, the respondents filed with the Tribunal the transcript of Deputy Judge Lockwood’s reasons.
9On August 24, 2017, the Tribunal directed the parties to make further submissions, within 14 days of the Registrar’s note, about the effect of Deputy Judge Lockwood’s reasons on the respondents’ request that the individual respondent be removed because Deputy Judge Lockwood dismissed the claim against the individual respondent.
10On September 6, 2017, the respondents filed submissions arguing that the corporate respondent is vicariously liable for the actions of the individual respondent, there are no allegations in the Application against the individual respondent and the corporate respondent is able to respond and remedy any alleged breaches of the individual respondent, if any.
11The applicant did not file submissions in response to the Registrar’s note of August 24, 2017 and the time for doing so has passed.
DECISION AND ANALYSIS
Request to Remove the Individual Respondent
12Rule 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 [now section 46.3(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.
13The 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 an individual respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether an individual respondent should be removed:
Is there 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 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?
14In considering whether any compelling reason exists to continue the proceeding against individual respondents, one way of approaching this question is to ask whether it is necessary to involve these individuals as parties in order to have a fair, just and expeditious resolution of the merits of the complaint.
15In this case there is a corporate respondent that has accepted that it is deemed or vicariously liable for the actions of the individual respondent and the individual respondent was acting within the scope of her employment. I find that the corporate respondent is able to satisfy the remedies sought. Finally the applicant has not demonstrated that he would be prejudiced by the removal of the individual respondent.
16In my view, considering all the circumstances, it is not necessary to involve Ms. Lisa Fleet as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application.
17The respondents’ request to remove Lisa Fleet as an individual respondent to the Application is therefore granted. The style of cause is amended accordingly.
18The Tribunal will continue to process the Application. The respondent shall file a complete Response not later than 35 days after a copy of this Interim Decision is sent to the respondent by the Tribunal.
19I am not seized of this matter.
Dated at Toronto, this 23th day of October, 2017.
“Signed by”
Josée Bouchard
Vice-chair