HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lisa Thompson
Applicant
-and-
Her Majesty in Right of Ontario as represented by the Ministry of Community and Social Services and Gordon Spoljarich
Respondents
INTERIM DECISION
Adjudicator: Eban Bayefsky
Indexed as: Thompson v. Ontario (Community and Social Services)
WRITTEN SUBMISSIONS
Lisa Thompson, Applicant
Angela Ingoglia, Paralegal
Her Majesty in Right of Ontario as represented by the Ministry of Community and Social Services, Laura Johnston and Gordon Spoljarich, Respondents
Cheryl Ellison, Counsel
1The applicant filed an Application alleging discrimination in goods, services and facilities on the ground of disability, contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (“Code”). Specifically, the applicant has a disabling condition and alleges that the respondents discriminated against her, in part, by denying her funding under the Ontario Disability Support Program (“ODSP”) for supplies she alleges are necessary because of her condition.
2The applicant named the ODSP as an organizational respondent. She also named an ODSP case worker, Laura Johnson, and an ODSP manager, Gordon Spoljarich, as personal respondents.
3The respondents clarified that the correct name of the organizational respondent is Her Majesty in Right of Ontario as represented by the Ministry of Community and Social Services. They also clarified that the correct spelling of the name of the first personal respondent is Laura Johnston.
4The purpose of this Interim Decision is to address the respondents’ request to remove the personal respondents from the Application, as well as their request for a summary hearing in this matter.
5The respondents provided submissions on October 23, 2017. The applicant responded on November 3, 2017.
REQUEST TO REMOVE THE PERSONAL RESPONDENTS
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 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.
7The 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:
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?
8In 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.
9I find that Laura Johnston should be removed as a respondent in this proceeding, but that Gordon Spoljarich should remain.
10The applicant’s allegations against Ms. Johnston are very general, claiming that Ms. Johnston “engaged in [a] frolic”, “over a prior relationship, outside of any company policy”, in a “flagrant conflict of interest”, and by “unreasonably slow action and halted service.”
11The applicant’s allegations against Mr. Spoljarich are more specific, namely, that he made disparaging comments particularized in the materials about the nature and extent of the applicant’s disability.
12In my view, the impugned conduct on the part of Ms. Johnston appears to be related to the manner in which she implemented the organizational respondent’s governing legislation and policy.
13Conversely, the allegations against Mr. Spoljarich concern conduct separate and apart from his role in carrying out the organizational respondent’s mandate.
14Section 46.3(1) deems organizations liable for any act or omission “done [by a person] in the course of his or her employment.” While the organizational respondent could be held liable for the conduct of both personal respondents, in my view, there is only an issue as to the ability of the organizational respondent to respond to the alleged misconduct on the part of Mr. Spoljarich, since it could lead to a finding of a Code breach unrelated to his employment.
15Unlike those against Ms. Johnston, the allegations against Mr. Spoljarich concern his particular conduct, potentially making it appropriate to award a remedy against him personally if an infringement is found.
16Other than her general submissions regarding the importance of holding the personal respondents accountable for a breach of the Code, I find that the applicant will not suffer any particular prejudice by removing Ms. Johnston from the proceedings.
REQUEST FOR SUMMARY HEARING
17Rule 19.5A of the Tribunal’s Rules states that the Tribunal need not give reasons for a decision not to hold a summary hearing. Having reviewed the parties’ submissions, I find that a summary hearing is not appropriate.
NEXT STEPS
18The applicant has indicated that she is willing to participate in a mediation of this case. The respondents have not addressed this question.
19The respondents are directed to advise, within 7 days of the date of this Interim Decision, whether they consent to mediation, failing which the Tribunal will schedule a hearing in the matter.
ORDER
20The respondents’ request to remove Laura Johnston as a personal respondent to the Application is granted. The style of cause is amended accordingly.
21The respondents’ request to remove Gordon Spoljarich as a personal respondent to the Application is denied.
22The respondents’ request for a summary hearing is denied. The respondents shall advise, within 7 days of the date of this Interim Decision, whether they consent to mediation, failing which the Tribunal will schedule a hearing in the matter.
23I am not seized of this matter.
Dated at Toronto, this 28th day of November, 2017.
“Signed by”
Eban Bayefsky
Vice-chair