Dionne Newton v. City of Toronto, 2009 HRTO 1870

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dionne Newton

Applicant

-and-

City of Toronto

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 5, 2009

Citation: 2009 HRTO 1870

Indexed as: Newton v. Toronto (City)

1This Application was filed January 21, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Th hearing in this matter is scheduled for January 11, 2010. This Interim Decision deals with the parties' Requests for Order During Proceedings

Removal of Personal Respondents

2The applicant alleges that her employment was terminated in November 2006 after complaining of sexual harassment in September 2005.

3The respondents seek the removal of personal respondents Eric Clarkson and Irit Kelman as parties to this proceeding. These persons were involved in the investigation and transfer of the applicant following the investigation.

4The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5 in deciding whether to remove personal respondents from a proceeding:

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 [is] 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?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

5The corporate respondent has accepted that the personal respondents were acting in the course of their employment and there is no issue as the corporate respondent's ability to provide a remedy. In these circumstances, I do not see a compelling reason to continue this Application against the personal respondents and they are removed from the style of cause.

Delay and/or Striking Pleadings

6The respondents note that the allegations of sexual harassment occurred in or before September 5, 2005 and the complaint was not filed with the Ontario Human Rights Commission until March 29, 2007. While the respondents acknowledge that the allegation of dismissal in November 2006 as a form of reprisal is timely, they assert that the allegations of the harassment are out of time and ought to be struck.

7The respondents concede that the investigation into the alleged harassment began in 2005 and continued until 2006. Since the complaint was filed in November 2006, it appears to have been filed within one year of the events in question, if the investigation is considered part of the allegation. Alternatively, I find that it would amount to good faith for the applicant to await the investigation which concluded in 2006 before filing the complaint.

8Accordingly, the allegations of sexual harassment and the resulting investigation do form part of the present Application.

Particulars

9In the alternative, the respondents seek particulars of the alleged harassment. The difficulty I have with this request is that the respondents met with the applicant in 2005 and took a detailed statement of her allegations of harassment which they proceeded to investigate. Accordingly, I am satisfied that they have sufficient particulars of the alleged harassment. To the extent that the applicant has attempted in her statement of additional facts to raise other allegations of harassment, these do not form the subject matter of the Application.

Production

10The applicant seeks production of a copy of the grievance filed against the Manager of Taxi Training. This person is not one of the persons about whom the applicant complained harassed her although she did allege that this manager failed to take adequate steps to address her concerns. I do not see the relevance of any grievance filed against this person.

11The applicant seeks production of the notes of the investigator and the labour relations staff conducting the investigation as well as any recommendations regarding training. These notes are relevant to the allegations of harassment and they should be produced within 21 days of the date of this Interim Decision. The recommendations, if any, should also be produced at the same time. The names of any other persons who conducted investigations and their notes should also be disclosed. The name of the investigator's superior or the superior of the human resources personnel are not relevant.

12Finally, the respondents concede that the applicant worked at the specified location, so documentation confirming this fact is not required.