HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Oscar Correia
Applicant
-and-
York Catholic District School Board
Respondent
INTERIM DECISION
Adjudicator: Janice Sandomirsky
Indexed as: Correia v. York Catholic District School Board
written submissions BY
Oscar Correia, Applicant ) Allison Taylor, ) Counsel
York Catholic District School Board, Respondent ) John W. Woon, ) Counsel )
1This is an Application filed June 30, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with the respondents' request to define the scope of the Application and remove the personal respondents.
2The applicant alleges discrimination in employment on the basis of colour, ethnic origin, race reprisal and sex. The applicant left the corporate respondent's employ in 2005 and started working at another school board. He applied for a position with the corporate respondent in August 2006. He was not the successful candidate. His complaint to the Commission, filed in February 2007, claimed that he was discriminated against in this competition and the refusal to hire him was a reprisal for his earlier complaints.
3The complaint refers to prior allegations of discrimination in the workplace. These concerns were the subject of an arbitration decision in 1995. The arbitrator ruled he had no jurisdiction to hear and determine the matters, noting that recourse was available under the Code. The applicant did not file complaints under the Code, prior to the one contained in this Application. He had discussions with, and wrote letters to, one of the personal respondents in 2001 and 2002, which were referenced in the complaint.
4The complaint was amended at the Commission to add place of origin as a prohibited ground, to change the date of last incident from August 11, 2006, to May 23, 2007, and, add to add that the complainant was unsuccessful in a further competition in May 2007.
5The respondents raised a number of preliminary issues in the Response to the Application. They submitted that: issues raised in the Application were beyond one year prior to the filing of the complaint, contrary to section 34(1) of the Code; those issues were appropriately dealt with in another proceeding and should be dismissed in accordance with section 45.1 of the Code; the applicant is attempting to expanded the subject matter of the complaint beyond the original complaint filed with the Commission contrary to the transitional provisions of the Code; and, that the Application is frivolous, vexatious and made in bad faith. The Tribunal requested further written submissions on these issues.
Scope of the Application
6The applicant submits that his complaint is based primarily on the fact that he was not offered the position he applied for in 2006, but that the earlier events noted in the complaint demonstrate a "systemic pattern" of discrimination. He submits that the failure to secure the job during the hiring process in 2006 was the culminating event in a chain of discriminatory events.
7The respondents submit that the applicant is attempting to use this Application to allege unlawful discrimination in his employment going back to 1995 when the grievance he filed with his union progressed to arbitration. They argue that the applicant was aware of the recourse available to him under the Code respecting these early events and he failed to take the necessary steps to have them reviewed in a timely manner.
8After reviewing the complaint, the response and the parties' submissions, it is clear that the applicant's allegations of discrimination relating to the August 2006 application for a senior position with the corporate respondent are within the one year time limit set out in the Code. In addition, it appears that the complaint was amended to include allegations in relation to the 2007 interview process and those events are also properly part of this Application.
9I am not satisfied, however, that the events referenced in the complaint prior to 2006 are timely. It does not appear that this can be characterized as a situation where the applicant only came to believe that his circumstances in the workplace were the result of discriminatory practices after a passage of time. The applicant raised issues of discrimination and received an arbitration ruling in 1995. That decision made it clear his recourse on these matters was to bring a complaint under the Code. Nonetheless, he did not take that step until 2007. Having decided not to pursue his rights under the Code at an earlier date, it would be unfair to allow him to add those complaints now as part of his application in relation to the 2006 application process.
10The applicant submits that he did take steps to address his earlier complaints directly through discussion with, and letters to, the respondents. I am not satisfied, however, that attempting to pursue these concerns internally provides a sufficient explanation for the failure to file his complaints under the Code in a timely manner.
11The applicant's claim also alleges that the refusal to hire him in 2006 and 2007 was a form of reprisal for raising earlier discrimination complaints. The earlier discrimination claims may be relevant in the context of that allegation, but only by way of background information. The merits of those claims do not form part of this Application.
Removal of Personal Respondents
12The respondents also request that the personal respondents be removed as parties to these proceedings on the following basis: Susan LaRosa and Patricia Preston were acting entirely within the course of their duties as employees of the corporate respondent; Elizabeth Crowe was an elected representative whose role and responsibilities are defined and governed by the Education Act and the Municipal Elections Act, 1996, with no individual authority to direct or control school operations as a matter of law.
13Section 45(1) of the Code provides that a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". As outlined in Persaud v. Toronto District School Board 2008 HRTO 31,
Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason.
14In this case, there was no concern identified about the corporate respondent's ability to respond to or remedy the alleged Code infringement. The corporate respondent would be deemed or vicariously liable for the actions of Susan LaRosa and Patricia Preston, the two personal respondents who were also employees. Therefore, I do not find any compelling reason to continue the proceeding as against them.
15Elizabeth Crowe was not an employee of the corporate respondent. The complaint against her was related to her role on the interview panel in relation to the 2006 job application in issue. Given that the applicant is only seeking remedies from the corporate respondent, however, I am not satisfied that it would be necessary to involve Ms. Crowe as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
ORDER
16The Application will proceed only on the matters related to the 2006 and 2007 applications for a position with the corporate respondent.
17The personal respondents are removed from the Application.
18I am not seized of the matter.
Dated at Toronto, this 15th day of December, 2009.
"Signed by"
Janice Sandomirsky
Member