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Completing the Application (Section 4) – The Respondents

This guide is general information only. It is not legal advice about your situation. This guide is not a substitute for a lawyer’s research, analysis, and judgment. This guide is reliable as of the date of publication (January 2021). You should be aware that the law and procedures under the Human Rights Code (Code) and at the Human Rights Tribunal of Ontario (HRTO) are subject to change without notice.

  1. Introduction
  2. Who should be named as a respondent?
  3. Can a union be a respondent?
  4. Can the Ontario provincial government be a respondent?
  5. Can the federal government or a federally regulated organization be a respondent?
  6. What type of information must be provided for a respondent?
  7. What is the correct legal name of an organizational respondent?
  8. What is a corporate search?
  9. What is the correct legal name of a personal respondent? 
  10.  If there is workplace discrimination, should employees of the organizational respondent be named as personal respondents?
  11. If there is workplace harassment, who should be named as a respondent?
  12. If there is workplace harassment, when is an employer liable?
  13. What if an organizational respondent accepts liability for a personal respondent?
  14. How can a respondent be removed from an application?
  15. How can a respondent be added to an application? 
  16. Can a reconsideration be requested of a decision to remove a named respondent?
  17. Can a reconsideration be requested of a decision to add a proposed respondent?
  18. Can a reconsideration be requested of a decision to not add a proposed respondent?

Introduction

A respondent is the party an applicant names in an application (Form 1) to the Human Rights Tribunal of Ontario (HRTO).  A respondent is a person and/or organization that an applicant believes is legally responsible or liable for the allegations of discrimination or harassment made in an HRTO application.

The HRTO sends a copy of an application to every organization and/or person named as a respondent.  Every named respondent is entitled to file a Response (Form 2) to the application and to fully participate in the HRTO proceeding.

An important part of an HRTO application is section 4, which requires an applicant to provide the correct name and contact information for every respondent. 

It is important that you name the correct parties as respondents in your application. If a person or organization is not named, they are not a party to the proceeding and cannot be found legally responsible by the HRTO. In some cases, however, naming a respondent is not always as straightforward as it may seem.

Naming a person means you are naming a personal respondent (also know as an individual respondent). Naming an organization, such as a corporation, company, or government agency, means that you are naming an organizational respondent.

Many HRTO applications name both types of respondents. After a hearing, the HRTO will decide what respondent, if any, has legal liability under the Human Rights Code (Code) based on the facts of the application and the relevant law.   

You should also be aware that the HRTO has a helpful Practice Direction on Naming Respondents as well as an Applicant's Guide to Filing an Application with the HRTO. It is a good idea to review these documents in detail before you file an application.


Who should be named as a respondent?

You should only name individuals and organizations that may be held legally responsible for the alleged acts of discrimination or harassment in an HRTO application.  

In some cases, it can be very challenging figuring out who might be potentially liable under the Code. This will depend on the facts of your case, such as what happened (e.g. termination of employment, harassment in an apartment, denial of a service animal at a store), where it happened (e.g. workplace, retail store, housing) and who was involved in the alleged events of discrimination or harassment.

It is important to give serious thought to be who to name as a respondent. On the one hand, failing to name all persons and organizations (e.g. a corporation, trade union, trade or occupational association, unincorporated association, or employers’ organization) potentially liable for the discrimination experienced may result in complications and delay.

On the other hand, adding unnecessary personal or organizational respondents will also likely increase the complexity of the case and may delay its resolution at the HRTO. In most cases where an applicant names unnecessary respondents, it is because the applicant names various personal respondents who have little, if any, likelihood of being found personally liable under the Code.

See, for example, Turner v. St. Lawrence College, 2019 HRTO 1000 (CanLII). The HRTO removed a personal respondent because the organizational respondent acknowledged liability for the alleged conduct as well as their ability to correct any Code violation. There were also no allegations made that the personal respondent acted in a manner that would lead to a remedy against her.

Given the importance of naming the proper parties as respondents, if you have doubts or concerns on who to name, it is a good idea to get legal information and advice at the time that you are completing an HRTO application. In general, you want to name respondents who may be potentially liable. In most cases, removing unnecessary respondents from an application is easier to do then trying to add new respondents later. Call our intake line for any human rights inquiry.  

 

Can a union be a respondent?

Yes. Unions or employee associations may be found liable under the Code. But it will depend on the facts of the case.  As a rule, a union may be liable for  discrimination in two (2) ways.  First, a union may contribute to discrimination by participating in the formulation of a work rule that may form part of a collective agreement that has a discriminatory effect on an applicant. Second, a union may be liable if it blocks the reasonable efforts of an employer to provide accommodation to an employee. 

In some cases, an applicant alleges that the failure of a union or employee association to pursue a matter on their behalf, such as refusing to file a grievance under a collective agreement, violates the Code.

You should be aware that the HRTO has found that it is not discrimination for a union to decide not to pursue a grievance, or to advance allegations of discrimination in the grievance, unless the union’s decision can be proved to be linked to a prohibited ground of discrimination under the Code. See, for example, Murray v. Kitchener Wilmot Hydro Inc., 2018 HRTO 1002 (CanLII).


Can the Ontario provincial government be a respondent?

Yes. The HRTO may hear applications against the Ontario government, whether a government ministry, board, or agency. When you name a government ministry as an organizational respondent, the correct legal name is:

Her Majesty the Queen in Right of Ontario, as represented by the Ministry of (name of the Ministry).

See J.G.L. v. Toronto District School Board, 2015 HRTO 657 (CanLII), where the applicant named both the Ministry of Education and the Government of Ontario as organizational respondents.  The Ministry clarified that, although the application named the Government of Ontario, the correct legal name was Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Education.

If an application is against an Ontario government agency, board or commission, you must use the government agency’s correct legal name. For a list of government agencies see: https://www.pas.gov.on.ca/scripts/en/BoardsList.asp.


Can the federal government or a federally regulated organization be a respondent?

No. The Code is provincial legislation and applies only to situations and events that have a sufficient connection to Ontario and come within the Code’s  jurisdiction.

The HRTO cannot hear applications about organizations that are within the federal jurisdiction of the Canadian Human Rights Act (CHRA) and the Canadian Human Rights Commission (CHRC). These include federal government ministries or agencies, federal institutions such as the armed forces, chartered banks, and airlines.

See, for example, Airall v. Canada Revenue Agency, 2020 HRTO 70 (CanLII).  The HRTO found that the Canada Revenue Agency is an agency of the federal government and subject to federal jurisdiction. In the decision, the HRTO also found that TD Canada Trust is a federally regulated service provider as banking is established as a federal undertaking under section 91 of The Constitution Act, 1867.  

In some cases, the question of federal versus provincial jurisdiction is more complicated. For example, interprovincial and international transportation is federally regulated. However, it may not always be clear that an organizational respondent provides transportation outside the province or, if it does, the extent to which it provides such transportation. The HRTO must decide whether the transportation activity undertaken by a respondent is a federal undertaking by examining the essential and ongoing aspects of a business operation rather than activities that are rare or unusual.

See, for example, Tingen v. 1243564 Ontario Limited o/a Total Scrap Management, 2015 HRTO 591 (CanLII), where it was undisputed that the organizational respondent continuously and regularly transported and sold recyclable materials to recycling foundries in the United States. The case was within the federal jurisdiction of the CHRA.  

In Ferreira v. KMS Van Lines Inc., 2013 HRTO 182 (CanLII), however, the HRTO found the organizational respondent, a moving company, did not present sufficient evidence to prove that it conducted business outside of Ontario, which would make it subject to federal regulation. The respondent’s business was found to be within the provincial jurisdiction of the Code.

Deciding whether to apply at the CHRC or the HRTO can be complicated. Even if the respondent is federally incorporated, the CHRC may not be the correct forum. It depends on the nature of the activity involved.

In some cases, where provincial or federal jurisdiction is not clear, applying to both the CHRC and the HRTO is the best course of action in order to preserve one’s legal rights.  This is especially true if an applicant is near the end of the allowable time – the limitation period - for filing an application at the CHRC or the HRTO and there is not enough time to find out the correct answer to the question of jurisdiction. 

For information about the federal human rights system, contact:

Canadian Human Rights Commission
344 Slater Street, 8th Floor
Ottawa, Ontario

K1A 1E1

Phone: (613) 995-1151
Toll-free: 1-888-214-1090
TTY: 1-888-643-3304
Fax: (613) 996-9661

Email: mail (info.com@chrc-ccdp.gc.ca).

https://www.chrc-ccdp.gc.ca/eng


What type of information must be provided for a respondent?

An applicant must provide the complete and correct name and contact information for each organizational respondent and/or any personal respondent.

Where an organizational respondent is named, an applicant must provide the correct legal name. A corporate search, if the organizational respondent is incorporated, may be required to confirm the correct legal name of an organizational respondent.

An applicant also needs to identify a contact person for the organizational respondent and give the contact information for that person. The contact person should be someone who will be able to respond on behalf of the organization. This could include, for example, the human resources manager if the application is about employment or the property manager if it is about housing.

The contact person is not a respondent. If you also want to name the contact person as a personal respondent, you must also include his or her information in the section for a personal respondent.

Once all this information is provided, the HRTO delivers the application to the named respondents.  If all the information required in an application is not provided, the HRTO will likely issue a Notice of Incomplete Application, requiring an applicant to provide the missing information before it will deliver the application to a named respondent.


What is the correct legal name of an organizational respondent?

It is the applicant’s responsibility, not the HRTO’s, to provide the correct legal name of an organizational respondent.

In some cases, it can be difficult to figure out an organizational respondent’s correct legal name. For example, a corporation may have several different names that it uses depending on the circumstances. A corporation may have a legal name, a business name, or other names that it may use in the course of conducting its business.  

Some tips to help figure out the correct legal name of an organizational respondent include checking your Record of Employment or T4, checking the website of the organizational respondent, contacting the organizational respondent and requesting its correct legal name, or doing a corporate search if the organizational respondent is a business and may be incorporated. 

If an applicant does not know of, or is uncertain about, the correct legal name of an organizational respondent, an applicant may file at the HRTO based on their best available information. In many cases, where an incorrect organizational respondent is named, an organizational respondent will file a Response setting out the correct legal name and the HRTO will update the style of proceeding accordingly. See, for example, Bailey v. Buff-Mar Cartage Inc, 2009 HRTO 410 (CanLII).

An applicant may also request, in some cases, that the HRTO order a named organizational respondent to provide the correct corporate information.  See for example, Dewartz v. Fifty’s Grill, 2011 HRTO 2046 (CanLII), where the corporate respondent was directed to clarify its legal name and provide information concerning its corporate structure.


What is a corporate search?

A corporate search can provide an applicant with valuable information about a company, including a company's true corporate name, registered address, and sometimes also a list of shareholder and director’s names.

You can conduct a search using the Ministry of Government and Consumer Services Enhanced Business Name Search to see if the business name has been registered with the Ontario Government. You can conduct the name search online at https://www.ontario.ca/page/public-record-search or by mailing in the form. There is a small fee for each name searched.

See Willms v. 2325135 Ontario Inc. o/a Honey, 2019 HRTO 1142 (CanLII) where the applicant filed a request for an order at the HRTO to remove the previously named corporate respondent (“Shop Honey”) and to add another corporate respondent after a corporate search revealed the correct legal name of the corporate respondent (“2325135 Ontario Inc. o/a Honey”). 


What is the correct legal name of a personal respondent? 

In some cases, as with organizational respondents, it can be difficult to figure out a personal respondent’s correct legal name.

See, for example, A.B. v. Havcare Investments Inc., 2014 HRTO 1087 (CanLII), where the personal respondent used several names to refer to herself and the HRTO was required to determine the actual legal name, that is the name on the personal respondent’s current birth certificate and passport.

If an applicant knows the correct legal name of the organizational respondent, but does not know the full name of an employee of the organization to be named as a personal respondent, an applicant may name the organizational respondent and request that the HRTO order the organization to provide the name of the individual.

If you are naming employees from the workplace, such as a manager, you can usually use their work address and contact information.

In other cases, if you have the incorrect or incomplete legal name on your application, the personal respondent should provide the correct legal name when they file their Response (Form 2). See, for example, Persichetti v. Alves, 2019 HRTO 1305 (CanLII), where the named personal respondent corrected the spelling of his first and last names.


If there is workplace discrimination, should employees of the organizational respondent be named as personal respondents?

This will depend on the facts of your case. If there is an organizational respondent, it usually is not necessary to name any personal respondents, such as employees of the organizational respondent.

This is because, where an organizational respondent is named, they have vicarious liability for the allegations and can respond to or remedy any of the allegations. More specifically, under section 46.3(1) of the Code, a corporation is legally liable for the acts of their employees. Section 46.3(1) also confirms the parallel liability of corporations for the actions of their employees. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.) for a full analysis of the interpretation of section 46.3(1).


If there is workplace harassment, who should be named as a respondent?

Allegations of workplace harassment are treated differently than other forms of discrimination in employment under the Code. Harassment is defined in the Code as: engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known as unwelcome.  

Section 46.3(1) of the Code provides for the vicarious liability of corporations but makes certain exceptions for allegations of harassment. Harassment is not usually considered to be an action taken in the course of an employee’s employment and an employer is typically not legally responsible for such actions.  

This means, for example, that an employer generally cannot be held vicariously liable for acts of sexual harassment by an employee. In some cases, the HRTO application should be brought against the employee, a personal respondent, who committed the workplace sexual harassment.


If there is workplace harassment, when is an employer liable?

An employer, as noted above, is generally not liable for the conduct of a harassing employee. There are exceptions to this general rule.

First, an employer who fails to take appropriate action to prevent workplace harassment, once they know of the harassment, may be found liable for violating an employee’s right to a workplace free from discrimination under section 5(1) of the Code. 

Failing to reasonably respond to workplace harassment, thereby creating a poisoned work environment, is a violation for which the corporation can be held vicariously liable. Where an employee complains about the workplace harassment to a manager, the employer then also has a duty to investigate the complaint under the Code.

Second, if the harassing person is a directing mind of the corporation (i.e. a person exercising some function of management), then the corporation can also be held liable for that person’s harassment.

See, for example, Marzara v. 2565818 Ontario Limited and Ahmadpour, 2019 HRTO 1625 (CanLII), where the personal respondent was both the harasser and a directing mind of the corporation.  Both the organizational and personal respondent were found to be jointly and severally liable for the breaches of the applicant’s Code rights.

The interpretation and application of section 46.3(1) of the Code and the naming of personal and organizational respondents may be summarized as follows:

  • The general rule is that an organizational respondent, including a corporation, is legally liable for the acts of their officers, employees or agents. 
  • The general rule’s exceptions include harassment in accommodation (section 2(2) of the Code), harassment in the workplace (section 5(2)), and sexual harassment (section 7). However, an:
    • organizational respondent can be held liable if it failed to adequately respond to the workplace harassment resulting in a poisoned work environment; and an
    • organizational respondent can be held liable for harassment if the harassing person is a member of management and considered to be part of the directing mind of the organization.

In many cases, an applicant’s best course of action in cases of workplace harassment is to name both the organizational respondent and any personal respondents who participated in the harassment. This will save an applicant from needing to add an unnamed respondent later in the HRTO process, which would require an HRTO order.


What if an organizational respondent accepts liability for a personal respondent?

In many cases, an organizational respondent acknowledges liability on behalf of a personal respondent.

This means that the organizational respondent accepts that an employee was acting within the scope of their job responsibilities, that there are no issues with respect to the organizational respondent’s liability for the employee’s actions, that the organizational respondent is in the best position to respond to the allegations and, if necessary, to correct or remedy any Code violations.

In these cases, where a personal respondent has also been named, the organizational respondent may seek to remove the personal respondent. As an example, consider when an employee is terminated from their employment by an employer’s human resources manager. The human resources manager acted in the course of their job duties, on behalf of their employer, in carrying out the termination of the employment.  The manager would not be personally liable for making the decision to terminate.

See, for example, Titze v. O.I. International Inc., 2018 HRTO 77 (CanLII), where the organizational respondent’s human resources manager was named as a personal respondent but only the organizational respondent was found liable for a breach of the Code. 


How can a respondent be removed from an application?

Rule 1.7(b) of the HRTO Rules of Procedure (HRTO Rules) gives the HRTO the power to remove a party.  As noted above, the HRTO will often remove a personal respondent where there is an organizational respondent in a position to respond to and remedy the applicant’s allegations. But it is important to note the facts of a case are a major factor in the HRTO’s analysis.

The leading HRTO case is Persaud v. Toronto District School Board, 2008 HRTO 31. The HRTO set out list of factors to be applied:

  • is there is an organizational respondent in the proceeding that also is alleged to be liable for the same conduct?
  • is there any issue raised as to the organizational respondent’s vicarious liability for the conduct of the personal respondent?
  • is there is any issue as to the ability of the organizational respondent to respond to or remedy the alleged Code infringement? and
  • does any compelling reason exist to continue the proceeding as against the personal respondent?  
    1. is the individual conduct of the personal respondent a central issue? or
    2. does the nature of the alleged conduct of the personal respondent make it appropriate to award a remedy specifically against that individual? and
    3. would any prejudice be caused to a party as a result of removing the personal respondent?

For example, see Bilon v. Niagara Catholic District School Board, 2018 HRTO 404 (CanLII), where all ten (10) named personal respondents were removed applying the Persaud factors and the application proceeded only against the organizational respondent.


How can a respondent be added to an application?  

Rule 1.7(b) of the HRTO Rules also gives the HRTO the power to add a party. Rule 1.7(c) allows the HRTO to grant amendments to an application. 

It is important to make a request to amend an application at the earliest opportunity. Any delay is to be avoided. The HRTO is more likely to deny your request to amend if the hearing is scheduled to begin soon.

To amend an application to add a party, an applicant must fill out and file a Request for an Order During Proceedings (HRTO Form 10) and send it to all the current respondents, including the respondent you want to add. You should send a copy of all the pleadings to the party you want to add, so they will be able to understand what your claim is about.

You also need to file a completed Statement of Delivery (HRTO Form 23) explaining when and how you delivered your HRTO Form 10 to the other parties.  All the respondents, including the party you are trying to add, will have an opportunity to respond to your HRTO Form 10.

In deciding whether to permit an amendment to add a respondent, the HRTO applies the three (3) part test set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

  1. Are there allegations in the application that could support a finding that the proposed respondent violated the Code?
  2. If the proposed respondent is a person and an organization is also named, is there a compelling reason to include them as a respondent? and
  3. Would it be fair, in all the circumstances, to add the proposed respondent?

In the second part, the HRTO will again consider the list of factors set out above in Persaud v. Toronto District School Board, 2008 HRTO 31. In the third part, the HRTO will consider several factors including:

  • the effects on the hearing process of adding the proposed respondent;
  • the reasons the proposed respondent was not named in the application;
  • any potential prejudice that may be caused to the other parties; and
  • the need for and likely effectiveness of a remedy against the proposed respondent.

See, for example, Findlay v. Ottawa Police Services Board, 2019 HRTO 168 (CanLII) where the HRTO denied an applicant’s request to add proposed personal respondents. The HRTO found that there was nothing to suggest that the alleged conduct of the proposed personal respondents was outside the scope of their work, and their actions would be held to be those of the organizational respondent under s. 46.3(1) of the Code.


Can a reconsideration be requested of a decision to remove a named respondent?

Yes. An HRTO decision with respect to removing a named respondent is a final decision. This means that it may be subject to a request for reconsideration under Rule 26 of the HRTO Rules. 

See Bilon v. Niagara Catholic District School Board, 2018 HRTO 1114 (CanLII) where the HRTO held that some of the central issues in the application were disposed of in the original decision because it dismissed all the allegations against the respondents who were removed.  The applicant’s request for a reconsideration, however, was denied.


Can a reconsideration be requested of a decision to add a proposed respondent?

No. An HRTO decision adding a proposed respondent is not a final decision subject to the HRTO’s powers of reconsideration.   In Rai v. Martel Law Office, 2017 HRTO 823 (CanLII), the HRTO added an organizational respondent. The organizational respondent then sought a reconsideration.

The RTo held HRTO held  HRTO held that the decision to add the respondent was not a final one, as it did not dispose of any of the central issues raised in the application. See also Valle v. Faema Corporation 2000 Ltd., 2017 HRTO 948 (CanLII).


Can a reconsideration be requested of a decision to not add a proposed respondent?

Yes. An HRTO decision to not add a proposed respondent is a final decision subject to the HRTO’s powers of reconsideration under HRTO Rule 26.  

See Robillard v. Victoria Village Inc., 2017 HRTO 294 (CanLII), where the HRTO allowed an applicant’s request for a reconsideration of its original decision not to add a proposed organizational respondent.