Ontario Human Rights Tribunal Keeps Gate Closed to Individual Respondent

Written by Daniel Standing, LL.B., Content Editor, First Reference Inc.

In a succinct interim decision, 2024 HRTO 225 (CanLII), the Human Rights Tribunal of Ontario (Tribunal) explained when it might grant an application to expand the list of respondents to a human rights complaint. It’s not as simple as one might think. In this case, the complainant sought to add a former employer as a respondent in his individual, personal capacity, to her sex discrimination complaint. The targeted individual was a majority shareholder and director of the employer.

Unsurprisingly, the Tribunal explained the result fundamentally turns on the issue of fairness and the complainant’s underlying rationale for wanting the person added. After all, such tribunals exist for the purpose of providing a fair result within a reasonable timeframe, and the more parties that participate, the more complex things can become, which takes more time. For that reason, when a request to add a party comes before it, the Tribunal will ask three questions to help it decide.

First, could the allegations support a finding the proposed respondent violated the Ontario Human Rights Code? Second, does an individual need to be added if an organization is already a respondent? And third, would it be fair to add them?

Additionally, the Ontario jurisprudence points to the impact of paragraph 45(1) of the Human Rights Code, the vicarious liability provision, which says a corporation is deemed liable for anything done or omitted by an employee, agent, official or officer in the course of their employment. The Tribunal has previously said that when this provision applies and there’s no doubt about the employer’s ability to respond to the complaint, there is a strong presumption against adding the individual respondent. The situation could be different, however, if the individual’s actions are a central issue, as opposed to them merely following company policy. The former would be an example of a “compelling juridical reason” to add them.

Applying these points to the matter before it, the Tribunal decided not to expand the respondent list. It was a clear case of vicarious liability where the named corporate respondent had the ability to respond and, potentially, remedy any Human Rights Code violation, so there was no compelling reason to add the individual director.

Takeaways

The result of a complainant’s request to add a respondent is not a foregone conclusion. Various factors apply, but fundamentally, in its gatekeeper role, human rights tribunals are concerned with unduly complicating the matters that come before it. If the already-named parties are capable of guiding the tribunal to a fair and expeditious result, chances are the targeted individual respondent won’t be added.