HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vincenzo Latronico

Applicant

-and-

York Region District School Board, Isagamni Paz, David Lutz and Dan Hunter

Respondents

AND B E T W E E N:

Vincenzo Latronico

Applicant

-and-

Canadian Union of Public Employees, Local 1196

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: May 5, 2010

Citation: 2010 HRTO 1000

Indexed as: Latronico v. York Region District School Board

1These Applications were received in May 2009. The Hearing in these Applications has been set for July 21, 2010. The purpose of this Interim Decision is to address the scope of the Application against Canadian Union of Public Employees, Local 1196 (“CUPE Local 1196”), the applicant’s requests for production, and to direct the orderly conduct of the first day of hearing.

2The applicant filed two complaints with the Ontario Human Rights Commission in April 2007 relating to allegations of harassment and discrimination in employment on the basis of ancestry, colour, ethnic origin, place of origin, race, sex and sexual solicitation. In a prior Interim Decision, 2009 HRTO 1803, I clarified that the scope of the allegations relating to York Region District School Board (the “Employer”) relate to events from February 2006 to October 27, 2006.

Scope of the CUPE Local 1196 Application

3The complaint filed with the Ontario Human Rights Commission on April 4, 2007 against CUPE Local 1196 and others alleged discrimination with respect to a vocational association on the basis of sex, ancestry, color, ethnic origin, place of origin, race and sexual solicitation. The applicant was hired as a probationary caretaker in July 2006. He alleges that the personal respondent in the Employer Application, Isagamni Paz made a sexual advance towards him in July and August which was refused. This allegedly led Mr. Paz to criticize the applicant’s work and threaten to give him a negative appraisal. He also alleges that Mr. Paz called him derogatory names and threatened him with a knife. He also alleged that Dan Hunter and David Lutz bullied him and that Laird Underwood made comments about Italian flags waving during the World Cup. The applicant’s probationary period was extended and his employment was terminated October 27, 2006.

4The subject matter of the original complaint against CUPE Local 1196 and its representatives relate to the applicant’s allegation that CUPE Local 1196 did not adequately help him in dealing with his allegations of sexual harassment and racial discrimination by co-workers and managers, the extension of his probation and ultimately his termination.

5The transitional provisions of the Code provide that applications under s. 53(5) may brought with respect to the subject-matter of the original complaint.

6When the applicant filed the transitional Application against CUPE Local 1196, he added extensive additions to the original complaint. Some of the additions allege new facts against new persons not referenced in the original complaint or relate to events that post-date the complaint of April 4, 2007 and do not form a natural extension of the scope of the Application. The following allegations do not form part of the subject matter of the CUPE Local 1196 Application:

• The allegations relating to CUPE National, Brian Atkinson and Randy Millage;
• Paragraphs 68 to 95 relating to Rene Bissonnette and the emails dated November 23 to 24, 2007 relating to Rene Bissonnette;
• Paragraphs 31 to 39 of section 8, pages 7 to 8 relating to Ms. Carson;
• Paragraphs 37 to 45 of section 9 relating to Mary Cromwell;
• All allegations in section 11 relating to Dan Morgan against the Employer respondents;
• All allegations that post-date April 4, 2007
• That CUPE Local 1196 representatives engaged in racial name calling or used derogatory terms about the applicant or others.

Removal of Personal Respondents

7The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras 4-5:

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.

8Having regard to the above principles, and having determined that the substance of the allegations relating to CUPE Local 1196 relates primarily to the manner in which they represented the applicant’s employment interests, and having ruled that the scope of the CUPE Local 1196 Application does not encompass any derogatory comments, I find that it is appropriate to remove all the personal respondents (John Botts, Debbie Carson, Mary Cromwell, Peter Watterson, Dan Morgan and Rene Bissonnette) from the CUPE Local 1196 Application. CUPE Local 1196 remains vicariously liable for their actions and there is no necessity to retain them as parties to ensure a fair, just and expeditious resolution of the Application. The style of cause is amended accordingly.

Production

9The applicant has made 75 requests for production from the Employer.

10I have reviewed the applicant’s requests for production and I am satisfied that, except as described below, they have already been produced, do not exist, do not meet the threshold of arguable relevance, relate to issues outside the scope of the Application, are overly broad, or intrude on the privacy of current or former employees.

11The Employer has confirmed that it has provided all non-privileged communications, emails, reports between its staff or with CUPE Local 1196 representatives with respect to the applicant’s allegations during the scope of the Employer Application (February 2006 to October 27, 2006). I further direct that the Employer produce all non-privileged communications, emails, reports between its staff or with CUPE Local 1196 representatives after October 27, 2006 to the extent that the communication relates back to the events between February 2006 to October 27, 2006.

12The applicant has made over 100 requests for production from CUPE Local 1196.

13I have reviewed the applicant’s requests for production, including the further request set out in the applicant’s email dated April 19, 2010, and I am satisfied that, except as described below, they have already been produced, do not exist, do not meet the threshold of arguable relevance, relate to issues outside the scope of the Application, are overly broad, or intrude on the privacy of current or former employees.

14CUPE Local 1196 has confirmed that it has produced all non-privileged communications, emails, reports between CUPE Local 1196 representatives and the Employer or between CUPE Local 1196 representatives (John Botts, Debbie Carson, Mary Cromwell, Peter Watterson Dan Morgan, Rene Bissonnette) with each other concerning the applicant’s allegations of discrimination up to April 4, 2007. I further direct CUPE Local 1196 to produce all non-privileged communications, emails, reports between CUPE Local 1196 representatives and the Employer, or between CUPE Local 1196 representatives themselves, concerning the applicant, after April 4, 2007, to the extent that the communication relates back to the alleged discrimination that occurred between February 2006 to November 2006.

Case Management

15In light of the complexity of the allegations, the Tribunal finds that it would be fair, just and expeditious to bifurcate these proceedings. The Tribunal will first determine whether the respondents have violated the applicant’s rights under the Code. If so, the Tribunal will hold a hearing to determine an appropriate remedy. Accordingly, the parties are not expected to call any evidence with respect to remedy at the hearing scheduled for July 21, 2010.

16The applicant has indicated in an email, dated April 19, 2010 that he wishes to call as many as 25 witnesses but he does not know their full names or contact information in order to secure their attendance at the Hearing. The applicant is directed to file a list of witnesses he wishes to call and a description of what he anticipates the witness will say, within 20 days of the date of this Interim Decision. The Tribunal will make further directions, as required on this matter.