Richards v. Bridgepoint Health, 2010 HRTO 1634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Orlette Richards

Applicant

-and-

Bridgepoint Health

Respondent

-and-

Canadian Union of Public Employees, Local 79

Intervenor

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 4, 2010

Citation: 2010 HRTO 1634

Indexed as: Richards v. Bridgepoint Health

1The applicant filed an Application on April 20, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin and family status. In her Application, the applicant notes that the facts relied upon in her Application are part of union grievances still in progress.

2The Application was served on the respondents and the applicant’s union as a named affected party.

3Along with their Responses, filed on July 7, 2010, the respondents filed a Request for Orders During Proceedings. The respondents request that the two individual respondents be removed as parties to the Application. The respondents also request that the Tribunal defer consideration of the Application pending the completion of two outstanding grievances.

4On June 24, 2010, the applicant’s union filed a Request to Intervene.

5The applicant has not filed a Reply to the Response or the Request for Orders made by the respondents or the proposed intervenor and the timelines for doing so have elapsed.

REQUEST TO REMOVE INDIVIDUAL RESPONDENTS

6The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

7The organizational respondent submits there is no issue with respect to the organizational respondent’s ability to respond to the allegations and no issue with respect to the organizational respondent’s deemed liability in regards to the allegations. Further, there is no issue as to the organizational respondent’s ability to provide a remedy. The organizational respondent submits that there is no compelling reason to continue the proceedings as against the individual respondents.

8I find that all the factors are present in favour of removal of the individual respondents. The allegations with respect to the individual respondents relate directly to their conduct in their employment role and decisions they made in their employment capacity. It appears that the organizational respondent has agreed to assume responsibility for the actions of the individual respondents should any violations of the Code be found. In these circumstances, I do not see a compelling reason to continue the Application against individual respondents. As such, the Tribunal orders that the individual respondents are removed as parties to the Application and the style of cause is amended accordingly.

REQUEST TO DEFER

9The Tribunal will generally defer an application where there is an ongoing grievance under a collective agreement based on the same facts and issues. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

10In the Request for Orders, the respondents submit that the grievances raise matters which are directly related to the allegations made in the current Application. The respondents included notification of the arbitration hearing, which indicated that the hearing into the two grievances was scheduled for May 31, 2010.

11Based on the materials filed with the Tribunal, it appears that the two outstanding grievances raise concerns with respect to alleged discrimination, harassment and unfair termination of the applicant’s employment. These same concerns are raised in the Application, which also seeks similar remedies to those identified in the grievance proceedings. I conclude that there is significant overlap in the subject matter of the Application and that of the two outstanding grievances.

12In these circumstances deferral is appropriate. The Tribunal orders the deferral of the Application pending the conclusion of both grievances.

REQUEST TO INTERVENE

13The applicant’s union seeks to intervene in accordance with Rule 11 of the Tribunal’s Rules of Procedure. The union represents the applicant in the two grievances arising out of the facts that give rise to this Application. The union indicates that an arbitration hearing commenced on May 31, 2010, regarding two grievances and the hearing process is ongoing. The union submits that it has a significant interest in the outcome of the Application as the applicant’s exclusive bargaining agent and the entity with carriage of the two grievances.

14In accordance with the Tribunal’s standard practice where an applicant is a member of a bargaining unit represented by the union, the union’s request to intervene is granted. Given the Tribunal’s decision to defer this Application, the extent and the nature of the union’s participation in the proceeding can be determined when and if the matter is brought back before the Tribunal.

15Where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

16I am not seized of this matter.