HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ellen Holowka
Applicant
-and-
Ontario Nurses’ Association
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Holowka v. Ontario Nurses’ Association
1This is an Application filed on March 3, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The purpose of this Interim Decision is to address a Request for an Order During Proceedings and a request for early dismissal.
2In addition to the Application, the Tribunal has received a Response, Reply to a Response, and a Request for an Order During Proceedings from the respondents. The style of cause is amended to reflect the correct name of the organizational respondent as provided in the Response.
3In this Application, the applicant alleges that the Ontario Nurses’ Association (ONA or the organizational respondent) and the personal respondent Michelle McColl, an employee of ONA, discriminated against her in employment, on the ground of disability. The applicant was not an employee of ONA. Rather, ONA was her representative in her employment relations with St. Joseph’s Care Group, her former employer.
4The applicant alleges that she required accommodation of a disability from her employer. There was an issue between the applicant and her employer about a return to work following a medical leave. She alleges that ONA “improperly conceded that accommodation by the employer was impossible” and thereby “participated in denying me accommodated work.”
5It is not in dispute that the respondents represented the applicant in negotiating a settlement of her employment issues, and that on March 3, 2008, the applicant signed a settlement in which she agreed to a severance payment, among other things. In the settlement, the applicant released her employer from any claims or actions, including human rights claims.
6The applicant alleges that in the process leading up to the settlement, ONA did not listen to or address her concerns, and did not advocate for her properly. She alleges that without her union’s support, she felt she had no choice but to agree to the settlement. In her Application, the applicant refers to the release that she signed, stating “this is why I have not named the employer in this application.”
7In their Response, the respondents requests that the Application be dismissed without a hearing, pursuant to Rule 13 of the Tribunal’s Rules of Procedure. In making this request, they rely on the agreement signed by the applicant. Further, they submit that the Application is outside the jurisdiction of the Tribunal in that there is no claim that ONA or the individual respondent discriminated against the applicant on the basis of any grounds under the Code. At its highest, they submit, the applicant alleges that she should have received better representation from the union, which is not a claim within the Tribunal’s jurisdiction.
8The respondents have also filed a Request for Order in which they seek the removal of the individual respondent as a party to these proceedings.
9The applicant filed a Reply, but does not address the request for early dismissal. She did not respond to the Request for Order.
REQUEST FOR REMOVAL OF PERSONAL RESPONDENT
10In Persaud v. Toronto District School Board, 2008 HRTO 31,, the Tribunal set out a non-exhaustive list of factors which it takes into consideration in assessing whether a personal respondent should be removed from a Tribunal proceeding:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
11In this case, the personal respondent is an employee of the organizational respondent, which does not take issue for its deemed or vicarious liability for her conduct. There is no issue as to the ability of ONA to respond to or remedy the alleged Code infringement if liability is established. There is no basis to conclude that there would be any prejudice to any party as a result of removing the personal respondent. I agree with the submission of ONA that, in the circumstances before me, it is not necessary to involve the personal respondent as a party in order to have a fair, just and expeditious resolution of the merits of this complaint.
12The Tribunal directs that Michelle McColl be removed as a personal respondent and the style of cause is amended accordingly.
REQUEST FOR EARLY DISMISSAL
13The Tribunal will schedule a half-day oral hearing to receive the parties’ submissions on the respondent’s request for early dismissal.
14If the applicant or respondent wishes to rely on any supporting material for the purpose of the teleconference (including submissions, facts or case law not already provided in the materials before the Tribunal), they are directed to deliver this material to each other, and to the Tribunal, by no later than two weeks before the date scheduled for the teleconference.
15I am not seized.
Dated at Toronto, this 25th day of June, 2009.
“Signed by”
Sherry Liang
Vice-chair