In Wallace v Pawsitively Purrfect Pet Spa Ltd., 2025 AHRC 119, the Alberta Human Rights Tribunal added the director of the corporate respondent, in her personal capacity, as a respondent to a complaint (the “Complaint”).
This case is interesting not only because it provides a summary of the test which the Tribunal will apply when considering whether to add a respondent to a complaint, but also because the reasoning applied by the Tribunal was somewhat unconventional.
Facts
- The Complainant filed the Complaint against the corporate respondent, Pawsitively Purrfect Pet Spa Ltd. (the Respondent), alleging that it had discriminated against her in the area of employment practices, on the ground of physical disability, in violation of section 7 of the Alberta Human Rights Act (the Act).
- The Complaint was initially only filed against the Respondent Pawsitively, and not against the individual director.
- The Complaint alleged that the discriminatory acts flowed from an incident where she refused to come into work on a scheduled day off, and included:
- assigning her a work schedule which failed to accommodate her physical disability/medical needs
- harassing her through multiple phone calls and text messages,
- constructively dismissing her employment.
- The Complaint stated that these alleged discriminatory acts were committed by her superior, Ms. Gregory.
- The Respondent is a closely held corporation, with Ms. Gregory being its primary agent, sole shareholder, and only Director.
- On multiple occasions from May of 2023 to August of 2025, the Respondent failed or refused to respond to the Tribunal’s correspondence or directives.
- The AHRC Director brought the application to add Ms. Gregory as an individual respondent
- Both the Respondent and Ms. Gregory were served with the application to add Ms. Gregory as a respondent but failed or refused to file any response.
Analysis/Conclusion
The Tribunal began by noting that pursuant to section 28(e) of the Act, it has the authority to add a respondent to a complaint that had already been commenced:
The following persons are parties to a proceeding before a human rights tribunal: …
(e) any other person specified by the tribunal, on any notice that the tribunal determines, and after that person has been given an opportunity to be heard against being made a party.
The Tribunal also noted that section 28 of the Act was reinforced by the Bylaws of the Commission, of which section 20.4 provides:
On request of a party or on its own motion, the Tribunal may make an order or direction to…
(b) add or remove a party
The AHRC Director argued that Ms. Gregory should be added as a respondent because the allegations in the Complaint flowed from her actions – in other words, all of the alleged discriminatory acts were committed by Ms. Gregory.
The Tribunal noted the two-part test for determining whether a party should be added as a respondent, as articulated by the Human Rights Tribunal of Ontario in Sigrist and Carson v London District Catholic School Board et al., 2008 HTRO 14:
- the first part of the test is whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the complainant’s rights;
- the second part of the test is whether the addition of the proposed respondent would cause substantial prejudice to the proposed respondent’s ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the tribunal.
In concluding that the first part of the test had been met, the Tribunal found Ms. Gregory’s alleged conduct was the primary issue in the Complaint:
[11] In this Complaint, the complainant has alleged some facts that, if proven, could support a finding that Gregory, the proposed respondent, violated the complainant’s rights. The complainant has stated that Gregory directly engaged in the discriminatory events alleged in the Complaint. In section E of the Complaint Form, the complainant alleged that Gregory changed the complainant’s work schedule contrary to a doctor’s note. The complainant alleged that the work schedule did not accommodate her physical disability or medical needs. Gregory is also alleged to have harassed the complainant through multiple calls and text messages. The complainant also alleged that, through Gregory’s actions, she (the complainant) was constructively dismissed from her employment. Based on the information, it is clear to me that Gregory’s alleged conduct is the central issue in this Complaint. [emphasis added]
The Tribunal also noted that in past jurisprudence, the Tribunal has been more willing to add personal respondents where they are the directing mind or sole shareholder and director responsible for day-to-day operations of the corporate respondent:
[12] In circumstances like the facts alleged in this Complaint, Tribunals have added personal respondents to human rights complaints because their alleged conduct is the central issue in the complaints. This is particularly so where they are the directing mind of the corporate respondent, or they are the sole shareholder and director responsible for the day-to-day operations of the corporate respondent and the decisions they took on behalf of the corporate respondent are alleged to violate the Act.
In concluding that the second part of the test had been established, the Tribunal noted that Ms. Gregory had been notified of the application to add her as a respondent on October 3, 2025, had had been given a deadline of October 10, 2025 to respond, but failed or refused to do so.
The Tribunal also found that, given that Ms. Gregory was alleged to have been the perpetrator of the discriminatory incidents described in the Complaint, she would have had personal knowledge of the facts relevant to the Complaint, and given the fact that she was the sole director and shareholder of the Complainant, she would have had notice of the allegations in the Complaint from the beginning.
The Tribunal also placed a great deal of emphasis on the Respondent’s lack of response to the Complaint, noting that it had refused or failed to respond to multiple correspondences and directives from the Tribunal over the course of several years, which raised a question as to whether it was still a going concern or had ceased to exist.
Interestingly, the Tribunal found that this factor militated in favour of naming Ms. Gregory as a personal respondent, as the Respondent’s non-responsiveness risked frustrating the Complaint and/or preventing the Tribunal from granting a remedy, should it find a contravention of the Act:
[26] The respondent’s non-response to this Complaint raises a question whether the respondent is still a going concern or whether it has ceased to exist. In my opinion, the respondent’s indifferent attitude toward this Complaint should not be allowed to frustrate the Complaint or prevent the Tribunal from granting an effective remedy should it find a contravention of the Act. […]
My Take
I am not surprised that the Tribunal found it appropriate to add Ms. Gregory as a respondent in these circumstances, as the elements of the test in Sigrist appeared to be easily met – the Complaint described particular acts of alleged discrimination on Ms. Gregory’s part in detail, and Ms. Gregory was the sole directing mind of the Respondent. Further, a hearing date had not been set, and the evidence supported the fact that Ms. Gregory had been aware of the Complaint for some time, but had chosen not to participate.
I was somewhat surprised by the Tribunal’s focus on the Respondent’s non-responsiveness in the proceedings as grounds for adding Ms. Gregory as a respondent to the Complaint.
The Tribunal largely made this decision on the grounds that the Respondent’s uncertain circumstances could lead to the Complainant being denied a viable remedy if she was successful in the Complaint – practically speaking, it is difficult, if not impossible, to recover a financial award from a defunct entity.
On one hand, it is well-established that human rights legislation is to be interpreted in a broad, purposive manner, in order to ensure that its remedial function can be carried out effectively, and the Tribunal’s finding is consistent with this principle.
On the other hand, it is equally well-established that when carrying out their duties, directors of corporations are presumed to be acting in their capacity as a representative of the corporation, not in their personal capacity – as such, they will only be personally liable for such actions in rare circumstances.
Given this presumption, the risk that a corporate respondent will “go under” in the course of proceedings, and the complainant will be denied a remedy, has typically been assumed to be an inherent and unavoidable risk of human rights actions.
It will be interesting to see how this decision is interpreted in the future.
The lesson for prospective complainants to take from this case is that the contents of the initial complaint are critical, as the Tribunal will consider whether the facts, as alleged in the complaint, in making its determination. While I have not personally reviewed the contents of the Complaint, the fact that the Complainant alleged particular acts of discrimination on the part of Ms. Gregory suggests that she put a great deal of time and attention into the Complaint. Situations like this show why it is important to consult with legal counsel before making a complaint.
The lesson for employers to take from this case is that participation in the human rights process is not voluntary. If an employer tries to bury its head in the sand and ignore the complaint, that could lead to the alleged perpetrators of the discrimination being added to a complaint in their personal capacities.
