There are few things more unsettling for clients than having individuals within the organization named, personally, in any legal proceeding. It's sort of expected that the company (employer) will get named, but when you see your name listed as a defendant or respondent, it causes some sleepless nights.
Because of the nature of human rights legislation and the various obligations under it, it often happens that the employer and various employees are named as respondents to the complaint. However, the fact that someone is named, personally, in a human rights complaint does not mean that they have to go along for the entire ride.
The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board:
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 [is] 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?
The Tribunal considered the issue in Goodridge v. Ottawa-Carleton District School Board (2010) and, after looking at the Persaud factors, put the matter this way:
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. [Emphasis added]
The Tribunal removed a couple of personal respondents however, even in the face of "extremely vague" allegations, refused to remove another.
