Simon's Megalomaniacal Legal Resources

Human Rights (Ontario) - Vicarious Liability

. Zheng v. G4S Secure Solutions (Canada) Ltd

In Zheng v. G4S Secure Solutions (Canada) Ltd (Div Ct, 2021) the Divisional Court considered a judicial review application regarding an Ontario HR matter. In this extract the court allows the elimination of individual respondent parties when the main corporate respondent had vicarious liability for them, but was not claimed against:

[48] It was reasonable for the Tribunal to conclude that in the absence of an Application against G4S (the employer) the Application should also be dismissed against the remaining eight personal respondents. Whatever role they each played in relation to the Application will still be part of the civil action and the liability of any of them taken up and borne by G4S which, as the employer, is vicariously liable for any wrongful conduct carried out in the course of their employment. This is quite different from Thomas v. IATSE Local 461[29] referred to by the applicant. In that case the individual against whom the complaint was allowed to continue was alleged to have sexually harassed the person complaining. This is not something the employer would necessarily be responsible for. Moreover, in that case the application was dismissed against the employer and the other employees not because of an ongoing civil action but because the application had no reasonable chance of success.

[49] The decision to dismiss the complaint against the eight employees also does not conflict with OHRC v. Farris.[30] In that case the applicant alleged that she had been discriminated against during the course of her employment, because of her sex. The two individual respondents were principals of the company. The Tribunal found that the applicant had been discriminated against and that the personal respondents had failed to address her concerns. Despite these findings, the Tribunal only made the company liable for damages. The company was inoperative. Nonetheless, the Tribunal declined to impose liability on the personal respondents. This determination was found to be unreasonable. The circumstances, in this case are entirely different. That case came after a full hearing and adjudication. It concerned only whether the individual respondents should be jointly and severally liable in circumstances where there was doubt that the company would be able to pay. There is no such concern apparent here. In this circumstance, when asked to demonstrate the foundation for his claim to discrimination based on his sex, the applicant was not able to point to anything associated with his particular situation and relied only on the fact that it was accepted that men of Chinese ethnic origin were generally discriminated against on that account.

[50] The applicant referred to the case of Dhingra v. The Oxford College of Arts, Business and Technology Inc.[31] The Tribunal made the following determination:

In all the circumstances, I deny the Request to remove the personal respondent, Jennifer Bawn. Though the corporate respondent acknowledges responsibility for Ms. Bawn’s conduct and asserted that it was within the scope of her duties, the allegations made, if proven, could lead to an individual remedy.[32]

[51] On its face, the difference is clear. There were allegations against the personal respondent that could reach beyond those that were the responsibility of the corporate respondent. There is nothing to suggest this is so in the case being decided. Similarly, in Agar v. North York General Hospital,[33] the application against the personal respondent was allowed to continue but not only because, as part of the remedy, an apology was sought and could not be provided by the employer but because the personal conduct of the individual would be a central issue in the complaint. It was alleged that she was independently responsible for the respondent corporation’s failure to accommodate the applicant. In the case being considered, there is no suggestion specific to any employee that suggests participation that was central to the Application that was made to the Tribunal.