Jason Garcia v. Tri-Krete Limited and Matthew Boah, 2008 HRTO 288

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Garcia

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Tri-Krete Limited and Matthew Boah

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: November 20, 2008

Citation: 2008 HRTO 288

Indexed as: Garcia v. Tri-Krete

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 Fax (416) 314-8743 Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail HRTO.Registrar-Transition@ontario.ca Website www.hrto.ca

WRITTEN SUBMISSIONS FROM

Tri-Krete Limited and Matthew Boah, Respondents ) Paul Sebunya, Counsel

Ontario Human Rights Commission ) Monmi Goswami, Counsel

Labourers’ International Union of North America, ) Local 506 ) Larry Steinberg, Counsel

1This decision addresses two Requests for Order during Proceeding filed by the respondents. In the first, the respondents seek an order removing the personal respondent as a party and production of a medical note. In the second, the respondents seek an order deferring the complaint on the basis that the Tribunal retains jurisdiction over the subject matter of the complaint only to the extent that it is not appropriately dealt with after the grievance procedure of the collective agreement between the corporate respondent and the Labourers’ International Union of North America, Local 506 (the “union”) has been fully exhausted.

BACKGROUND

2This is a complaint referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint alleges the respondents infringed the complainant’s right to equal treatment in employment without discrimination because of disability when he was terminated from his employment after advising the personal respondent he had injured his hand and was unable to work for seven to ten days.

3The respondents deny the complainant was terminated because of a disability or perceived disability and instead submit that he was terminated due to ongoing insubordination, lack of cooperation, unsatisfactory performance and unsatisfactory attendance.

4The complainant was employed at Tri-Krete Limited from November 29, 2006 to January 15, 2007. He was paying union dues to the union at the time he was terminated although there appears to be some question as to whether he was covered by the collective agreement in all respects.

5During the pre-hearing conference call, the parties agreed to a timetable for filing written submissions on these preliminary issues. At that time the Tribunal advised all parties it required detailed written submissions in support of the various requests since it may deal with the requests of the basis of the written material submitted.

6On August 6, 2008, notice was given to the union, along with a copy of the report from the pre-hearing conference call. The union responded on August 13, 2008 indicating that it was not intending to intervene in the proceeding and that no grievance had been initiated to address the complainant’s circumstances since no request to do so was received.

7The Tribunal has now received detailed written submissions from the respondents and the Commission on the preliminary issues. The union filed submissions on the deferral argument. The complainant did not file any submissions. The respondents also sought to make oral submissions on the issues.

8I have considered the parties’ submissions and am satisfied that my decision can be made based on the written material filed.

REQUEST TO DEFER COMPLAINT

9While counsel for the respondents agrees there is no ongoing grievance, he argues the Tribunal should nevertheless defer to the grievance process since the complaint relates to the interpretation, application and/or administration of the applicable collective agreement.

10Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal’s rules. While none of the parties challenged the Application of this section to a commission-referred complaint, I do not find it necessary to address its application, since even assuming it does apply, this is not a case where deferral is appropriate.

11Section 45 provides for deferral to a proceeding not a potential for a proceeding. In these circumstances where no grievance was initiated at the time of the alleged discrimination, there is no proceeding to defer to. As a result there can be no deferral.

REQUEST TO REMOVE PERSONAL RESPONDENT

12The respondents request that Mr. Boah be removed as a personal respondent. The respondents argue that at all material times, the personal respondent was acting within the capacity of Plant Supervisor and within the scope of his duties as an employee of the corporate respondent and that any alleged infringement of the complainant’s rights would have been committed by the corporate respondents. As a result, the respondents argue that the personal respondent is not a necessary party to the proceeding.

13The Commission opposes the request on the basis that, as plant manager, the personal respondent’s decision to terminate the complainant was an isolated act performed by a directing mind of the corporate respondent. Given the personal respondent’s direct actions are in question, the Commission argues that it would be premature for the Tribunal “…to dismiss the complaint as against Boah”.

14Rule 14(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined a “non-exhaustive list of factors” that may be helpful in assessing whether a personal respondent should be removed including:

1.) Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2.) Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?

3.) Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4.) Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?

5.) Would any prejudice be caused to any party as a result of removing the personal respondent?

15The Commission suggests that the fourth factor – in particular that the personal respondent’s individual conduct is a central issue in the proceeding – constitutes a compelling reason to continue the proceeding against him.

16On the basis of the material filed, it is apparent that the personal respondent was the individual who talked to the complainant by telephone and communicated the decision that he was fired. However it does not appear that either party asserts that by doing so the personal respondent was acting outside of his role as plant supervisor. The respondents submit that the complainant was terminated after the personal respondent consulted with his superior and communicated a previously established management consensus that the complainant’s employment was not working out. This description is not inconsistent with the Commission’s hearing brief which describes an initial telephone call between the personal respondent and the complainant where there is no mention made of termination and then a subsequent telephone call where the termination is communicated. Given these positions, I am satisfied there is no evidentiary basis to support a finding that the personal respondent acted independently or outside the course of his responsibilities.

17Finally and significantly, the Commission has not asserted that there would be any prejudice arising from the removal. While seeking to hold the respondents jointly and severally liable for any remedies ordered, the Commission concedes the personal respondent remains an employee of the corporate respondent and no public interest remedies are being personally sought against him. They did not identify any actual or potential prejudice in their submissions.

18Having regard to all of the foregoing, I order that Matthew Boah be removed as a respondent from this proceeding and that the title of proceeding be amended accordingly.

PRODUCTION OF MEDICAL NOTE

19The respondents request an order that the Commission produce the medical note referenced in paragraph 6 of the Commission’s hearing brief. In the alternative, the respondents request an order striking paragraph 6 of the Commission’s hearing brief and paragraph 5 of the Commission’s reply on account of their failure to produce such note.

20The reference to the medical note in the Commission’s hearing brief is as follows:

On or about January 13, 2007, Garcia sustained an injury to his right hand and sought treatment at the Niagara Health System Emergency Department. Garcia received 5 stitches to his right hand and a medical note stating that he would be unable to work for the next 7-10 days.

21The Commission has not objected to producing the note. Rather, the Commission has stated that after an exhaustive search it has been unable to locate the note and accordingly is unable to produce it.

22In these circumstances, I do not find it appropriate to make either order requested. I am satisfied based on counsel’s statement that the Commission is unable to locate the note. In this respect, I note that the parties have provided copies of documentation that they will be relying on at the forthcoming hearing. Based on my review of the documentation, it appears that the Commission has sought, obtained and sent to the respondents the hospital records received from the Niagara Health System pertaining to the complainant’s treatment.

23I also do not find it appropriate to strike the applicable paragraphs in the hearing brief in question. The complainant may still provide viva voce evidence about the note and the parties are fully able to make submissions at the conclusion of the hearing as to what impact, if any, the absence of the medical note should have on my findings.

ORDER

24The Tribunal orders that Matthew Boah is removed as a party to this proceeding and the title of proceeding is amended accordingly.