Being named personally in any legal proceeding is no one's idea of fun. Being named personally in a human rights case alleging that you are somehow liable (personally) for harassing or discriminatory conduct escalates the anxiety.
The Ontario Human Rights Tribunal has developed a body of cases that establish principles under which individuals will be removed as respondents to human rights applications.
Deciding whether or not to remove an individual as a respondent is a case-by-case exercise. The leading case is Persaud v. Toronto District School Board where the following non-exhaustive list of factors was noted as being "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?
More recently, in Sigrist and Carson v. London District Catholic School Board the Tribunal put the matter as follows:
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.
The most recent case to apply these principles is Matthews v. Chrysler Canada where the Tribunal removed three (3) personal respondents from the application.
These are important cases and ones that establish a principled approach to dealing with this important issue. If there is no purpose to be served by adding individuals as respondents to human rights complaints, the Tribunal appears to be saying that they won't be added "in the absence of some compelling judicial reason".
