In Sterling v Wendy’s Restaurant, the applicants (a former Wendy’s employee and his wife), named 14 personal respondents, who were members of management and fellow co-workers, in a human rights application alleging workplace discrimination.
The Tribunal removed all the personal respondents from the proceeding. The Tribunal held that the applicant had not established a compelling reason for the inclusion of the personal respondents. There was no issue as to the restaurant’s ability to respond to or remedy the alleged Human Rights Code infringement and it accepted being deemed liable for the conduct of its employees.
A compelling reason to name a personal respondent may exist in certain circumstances. For example, a compelling reason may exist where: (1) the individual conduct of a proposed personal respondent is central to the allegations of discrimination or (2) where the nature of the alleged conduct would make a remedy against the specific individual appropriate if an infringement of the Code is found. It is less likely where an individual is following organizational practices or policies.
In addition to the concerns of management over potential personal liability, the inclusion of personal respondents can add unnecessary complexity to the proceedings and may operate as a roadblock to a resolution. One source of complexity that may arise pertains to joint retainers, particularly with respect to employees. Issues of conflict of interest may arise where the interests of the employer and the personal respondents diverge. In the past the Tribunal has been hesitant to remove personal respondents from applications. This decision may mark a change in the Tribunal’s practice.
