Rodriques v. Toronto Community Housing, 2010 HRTO 1350

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Rodriques Applicant

-and-

Toronto Community Housing Corporation Respondent

AND B E T W E E N:

Paul Rodriques Applicant

-and-

Canadian Union of Public Employees, Local 416 Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: June 15, 2010 Citation: 2010 HRTO 1350 Indexed as: Rodriques v. Toronto Community Housing

1These are two Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), both dated April 4, 2009. The underlying complaint against Toronto Community Housing Corporation ("TCHC"), Mary Richardson and Ed Vergara (the "TCHC respondents") was filed with the Ontario Human Rights Commission (the "Commission") on March 26, 2008. The underlying complaint against Canadian Union of Public Employees, Local 416 ("CUPE, Local 416"), Brian Cochrane, Ed Vergara and Ron Johnson ("the union respondents") was filed on April 11, 2008.

2This Interim Decision addresses the respondents' requests for removal of the personal respondents as parties to this proceeding.

3This Tribunal previously dealt with requests by all respondents to dismiss the Applications pursuant to s. 45.1 of the Code on the basis that the substance of these two Applications already had been appropriately dealt with through the arbitration decision issued by Arbitrator Tims dated June 17, 2009. These requests were granted in part, with the only allegations remaining to be dealt with in this proceeding being: that the superintendent harassed the applicant repeatedly after he reported the superintendent to Toronto Public Health in April 2007; and that the applicant brought the harassment to the attention of both TCHC and CUPE, Local 416 and neither investigated or addressed that situation. These allegations are proceeding to a hearing before this Tribunal on August 10, 2010.

4On March 25, 2010, the TCHC respondents filed a Request for Order seeking removal of Mary Richardson as a personal respondent. This Request was consented to by the union respondents. No response to this Request was received from the applicant or his representative.

5On April 9, 2010, the union respondents filed a Request for Order seeking removal of Brian Cochrane, Ed Vergara and Ron Johnson as personal respondents. The TCHC respondents have consented to this Request. No response to this Request was received from the applicant or his representative.

6The principles relating to the removal of personal respondents have been set out in the Tribunal's jurisprudence, primarily in Persaud v. Toronto District School Board, 2008 HRTO 31. In the instant case, there is no issue that TCHC and CUPE are alleged to be responsible for the conduct at issue, that no issue is being raised by either of these parties as to their deemed or vicarious liability for the actions of their employees and/or representatives, and that both of these respondents are able to respond to any remedy that may be awarded.

7The question comes down to the issue as to whether there is any compelling reason to continue the proceeding as against any of these personal respondents. With regard to the personal respondent Mary Richardson, she is the WSIB Claims Consultant for TCHC and was involved in the administration of the applicant's WSIB claims. The TCHC respondents state that Ms. Richardson had no involvement in the remaining allegations of reprisal and failure to investigate. There is nothing on the face of the complaint to indicate otherwise. Accordingly, Ms. Richardson is removed as a party respondent to this proceeding and the title of proceeding will be amended accordingly.

8With regard to the personal respondents Brian Cochrane, Ed Vergara and Ron Johnson, the complaint alleges that in April 2007, the applicant reported to the By-Law office that the superintendent was smoking in the facility and there appears to be no dispute that the superintendent was caught doing so. The complaint alleges that since that time, the applicant "has become the victim of innumerable acts of harassment by the Superintendent and the union has failed to resolve the situation". The complaint states that the applicant first contacted Mr. Vergara, who was a return to work specialist with the respondent union at the relevant time, to request a transfer "because of the constant harassment". The applicant alleges that he got no response from Mr. Vergara, so he then contacted Mr. Johnson, who was the Unit Chair at the relevant time. The applicant alleges that Mr. Johnson did nothing, so he next sent a letter to Mr. Cochrane, who was the union President at the relevant time but who has since passed away. The applicant alleges that this last action resulted in a "harassing call" from Mr. Vergara for going over his head to the President.

9It is clear from this recitation of events that these three individuals were contacted by the applicant in accordance with their respective roles in the union, and whether or not the applicant can establish any violation of the Code will turn on the acts or omissions of these individuals in the context of their various roles as union representatives. In my view, this scenario does not provide any compelling reason to continue this proceeding against any of these individuals as personal respondents. As a result, the Application is dismissed as against these three personal respondents and the title of proceeding will be amended accordingly.

10Finally, I note that Mr. Vergara appears to have been named as a personal respondent not only to the union application but also to the TCHC application. It is not clear to me whether this was an error in the originating complaint and Application, or whether it was intended by the applicant that Mr. Vergara be a personal respondent to both Applications. In any event, as there are no remaining allegations that reference Mr. Vergara in any role he may have had at TCHC as opposed to the union, there is equally no basis to support Mr. Vergara continuing as a personal respondent to the TCHC Application and I order that he be removed as a personal respondent to that Application and the title of proceeding will be amended accordingly.

11Finally, I note that this matter is proceeding to a hearing on August 10, 2010. While the applicant has filed a statement of additional facts stating that he is not relying upon any facts beyond what has been set out in his complaints, I note that the Tribunal to date has only the bare allegation that the applicant "has become the victim of innumerable acts of harassment by the Superintendent" without any specifics or particulars provided as to what these alleged "acts of harassment" were. Further, while the applicant's complaint outlines steps that he alleges he took to bring this matter to the attention of his union, he does not indicate what if any steps he took to bring the alleged harassment to the attention of TCHC.

12Accordingly, within 20 days of the date of this Interim Decision, the applicant is directed to file a statement setting out the specifics or particulars of each and every "act of harassment" he alleges was engaged in by the superintendent and detailing what if any steps he took to bring this harassment to the attention of TCHC. By July 21, 2010, TCHC and the union may file any statement of additional facts as may be required to respond to the particulars provided by the applicant.

13I am not seized.