Elizabeth Laba v. The Corporation of the City of Windsor, Al Reaume and David Fields, 2009 HRTO 382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Laba Applicant

-and-

The Corporation of the City of Windsor, Al Reaume and David Fields Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: April 2, 2009 Citation: 2009 HRTO 382 Indexed as: Laba v. Windsor (City)

INTRODUCTION

1This is an Application filed on July 25, 2008, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in employment on the basis of sex and family status. The applicant also filed a Request for Order during Proceedings, requesting that the process be expedited.

2The respondents filed Responses to both the Application and the Request for Order during Proceedings. The respondents agreed that the process should be expedited, however, in their Responses they also requested both dismissal and deferral of the Application as the applicant is a member of a union and has filed a grievance. All parties agreed to mediation.

3The Tribunal issued an Interim Decision, 2008 HRTO 84, indicating that mediation would be scheduled on an expedited basis and that the Tribunal would address the preliminary issues raised by the parties should the mediation not result in a settlement. As the mediation did not result in a settlement, the parties were asked to provide the Tribunal and each other with their positions on the preliminary issues they had raised. By letter dated February 10, 2009, the respondents submitted that "it would likely be appropriate to have the matter heard before the Tribunal, as that is the quickest possible resolution and the Tribunal can seize complete jurisdiction over the issues to the exclusion of the Board of Arbitration." The respondents also advised that the grievance is still proceeding and that an arbitrator has been appointed and is canvassing dates for a hearing. The respondents did not address their earlier request for dismissal.

4By letter dated February 23, 2009, the applicant advised she was no longer seeking to have the matter expedited.

5On March 12, 2009, the applicant filed a Request for Order during Proceedings, requesting that "City of Windsor Windsor Fire & Rescue Service" be added as an organizational respondent to the Application. In response, the proposed organizational respondent indicated its correct legal name is "The Corporation of the City of Windsor".

REQUEST TO ADD A PARTY

6The legal principles applicable to a request to add a respondent have been set out by the Tribunal in Payne v. Otsuka Pharmaceutical Co., 2001 CanLII 26231 (ON H.R.T.), Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, and Pieters v. Liquor Control Board of Ontario, Store 568, 2007 HRTO 22.

7The first part of the test relates to whether there are facts alleged that could lead to liability of the proposed respondent: see Pieters, supra at para. 7. A party can only be added if there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant's rights: see Greenhorn, supra at para. 28.

8In the present case, the applicant, a firefighter, states that she gave notice of her pregnancy and requested that she stay on her regular 24-hour shift on modified duties. She states that her request was denied. She alleges discrimination in employment on the basis of sex and family status and names Chief David Fields and Deputy Chief Al Reaume, as individual respondents. She now seeks to have her employer added as an organizational respondent.

9It appears that there are facts alleged which, if proven, could support a finding that the applicant's rights were violated and, having regard to s. 46.3 of the Code, could lead to liability of the proposed respondent. Section 46.3(1) states, in part, that "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 of a corporation… shall be deemed to be an act or thing done or omitted to be done by the corporation…"

10The second part of the test relates to the addition of the proposed respondent at the particular stage in the process at which the order is sought. The Tribunal must examine whether the addition of the proposed respondent as a party would cause substantial prejudice to that party's ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal: see Pieters, supra at para. 9, Payne, supra at para. 20, and Greenhorn, supra at para. 26.

11It is important to note that the above test was developed in the context of complaints that were filed with the Ontario Human Rights Commission (the "Commission") under the old Part IV of the Code. In those decisions, the Commission referred the complaints to the Tribunal after it had investigated and endeavoured to settle them. The request to add a proposed respondent was made at the Tribunal well after the lapse of what was then a six-month limitation period for filing a complaint. By contrast, under the new Part IV of the Code, a person who believes that any of his or her rights have been infringed is required to file an application directly with the Tribunal, and there is now a one-year limitation period in s. 34(1) of the Code. [see: Marchese v. Fortinos, 2009 HRTO 25.]

12In light of s. 34(1), it may be unnecessary for the Tribunal to consider the second part of the test for adding a party where a request to add a party is made within one year of the events at issue, as in the present case. However, I need not determine that issue in the circumstances. The proposed organizational respondent appears to take no position on the Request that is be added as a party. Nor does it identify any prejudice to its ability to make full answer and defence to the allegations if it were to be added as a party. The applicant's Request to add the organizational respondent is granted and the style of cause is amended accordingly.

DEFERRAL

13Section 45 of the Code confirms the Tribunal's authority to defer consideration of an application. Under Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Where the Tribunal intends to defer consideration of an application, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral and an opportunity to make submissions (Rule 14.2).

14The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. However, the Tribunal must also consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the application.

15The parties and the applicant's union, the Windsor Professional Firefighters Association, are invited to make written submissions regarding whether the Tribunal should defer consideration of this Application until such time as the grievance is resolved. The parties and the union should deliver any submissions to each other and file them with the Tribunal by no later than April 16, 2009. The applicant may wish to review the Tribunal's Rules and Guide to its processes, available on the Tribunal's website at www.hrto.ca, before preparing the submissions.

16A copy of this Interim Decision will be provided to the applicant's union.

17I am not seized of this matter.