Ellis v. Lifelabs, 2017 HRTO 1549

Human Rights Tribunal of Ontario

B E T W E E N:

Patricia Ellis Applicant

-and-

Lifelabs Respondent

INTERIM DECISION

Adjudicator: David Muir Date: November 23, 2017 Citation: 2017 HRTO 1549 Indexed as: Ellis v. Lifelabs

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondents as parties to this Application.

2In her Application the applicant alleges discrimination in employment because of disability. The applicant sustained an injury which allegedly prevented her from attending work as a part-time employee of the respondent. The applicant identified as individual respondent her immediate supervisor and a Disability Management Consultant involved in her case. The respondent seeks the removal of these two individual respondents.

3The applicant opposes the respondents’ Request.

4The Request is granted.

5Rule 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 et al, 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.

The 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?

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.

6The respondents argue that the actions of the individual respondents appear to have been undertaken in the course of their employment and in accordance with corporate policies in disability management cases. The respondents agree that the organizational respondent is liable for any violations of the Code found in the actions of the individual respondents. The respondents also assert that Lifelabs is capable of fulfilling of any remedial order that the Tribunal might make. Finally the respondents argue that there is no compelling juridicial reason for the individual to remain as parties to the Application.

7I agree with the respondents’ submissions. In my view, considering all the circumstances above, it is not necessary to involve either individual respondent as parties in order to have a fair, just and expeditious resolution of the merits of the Application. I agree that on the face of the pleadings these individuals were acting in the course of their employment attempting to implement organizational policy. It is not at all clear based on the pleadings that any Code liability could attach to them personally for what they are alleged to have done. The applicant does not allege that she would be prejudiced by their removal. The applicant does suggest a number of potential benefits/consequences of the removal or not of the individual respondents. These do not amount to prejudice to any party and are not proper reasons to continue to involve these individuals as parties.

8For these reasons the Request is granted, individual respondents are removed from the Application and the style of cause amended accordingly.

9I am not seized of this matter.