Szyluk v. United Food and Commercial Workers Canada, 2010 HRTO 2051

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elzbieta Szyluk

Applicant

-and-

United Food and Commercial Workers Canada, Local 1000A

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 7, 2010

Citation: 2010 HRTO 2051

Indexed as: Szyluk v. United Food and Commercial Workers Canada

WRITTEN SUBMISSIONS BY

United Food and Commercial Workers ) Jo-Anne Pickel, Counsel

Canada, Local 1000A, Kevin Benn )

and Don Taylor, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to address the respondents’ request to (a) remove the individual respondents from the Application, and (b) dismiss the Application on the basis that it is outside the Tribunal’s jurisdiction.

BACKGROUND

2The applicant filed a complaint dated June 5, 2008 with the Ontario Human Rights Commission (the “Commission”), which alleged that the United Food and Commercial Workers Canada, Local 1000A (“Union”) discriminated against her with respect to employment because of race, colour, ancestry, ethnic origin, and place of origin.

3Specifically, she alleged that she attended a bargaining unit meeting on March 20, 2008, where another member of the unit made discriminatory comments. She further alleged that the respondent failed to properly respond to her internal complaint about the comments.

4The applicant then elected to abandon her complaint at the Commission, and filed an Application with the Tribunal under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 18, 2008 with respect to the subject-matter of the complaint.

5Following a hearing, the Tribunal issued a Case Resolution Conference Decision, 2009 HRTO 902, dated June 23, 2009, which changed the social area in the Application from “employment” to “vocational associations”, and upheld the Application.

6The applicant then filed an Application under s. 34 of the Code on January 5, 2010, which named the Union, Kevin Benn (the Executive Vice President of the Union) and Don Taylor (a staff representative with the Union) as respondents. She alleged that alleged that the respondents harassed and discriminated against her with respect to her membership in a vocational association because of colour, place of origin and ethnic origin, and subjected her to reprisal for claiming and enforcing her rights under the Code.

7In her Application, she repeated the allegations that were in her complaint to the Commission and her section 53(3) Application, and further alleged that a number of incidents occurred after those incidents that constituted harassment, discrimination and reprisal.

8The respondents filed a Response and two Requests for an Order During Proceedings on June 9, 2010, which denied the allegations of harassment, discrimination and reprisal, requested that the Tribunal remove the individual respondents from the Application, and requested that the Tribunal dismiss the Application because it is outside the Tribunal’s jurisdiction.

9Specifically, the respondents requested that the Tribunal dismiss the Application because (a) the allegations up to and including April 8, 2008 have been finally determined by the Tribunal and cannot form the basis for a new Application, (b) the allegations relating to incidents that allegedly occurred prior to December 30, 2008 occurred more than one year prior to the filing of the Application, and (c) the applicant has failed to establish a prima facie case of discrimination with respect to a number of the alleged incidents.

10The respondents further stated that if the Tribunal does not dismiss the Application based on the requests set out above, they intend to file a Request for a Summary Hearing.

11The applicant did not file a Reply to the Response or Responses to the two Requests for an Order During Proceedings.

REMOVAL OF INDIVIDUAL RESPONDENTS

12Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

13The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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 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.

14The respondents submitted that Mr. Benn and Mr. Taylor should be removed as respondents because the Union is alleged to be liable for the same conduct as them, there is no issue as to the Union’s vicarious liability for their alleged conduct, there is no issue as to the Union’s ability to remedy the alleged Code infringements, there is no compelling reason to continue the proceeding against them as they were, at all times, acting within the scope of their job responsibilities, and no prejudice would be caused to any party by removing them.

15I agree with the respondents’ uncontradicted submissions. In my view, considering all the circumstances, it is not necessary to involve Mr. Benn and Mr. Taylor as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

16The respondents’ request to remove Mr. Benn and Mr. Taylor as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.

SECTION 53(8) OF THE CODE

17Section 53(8) of the Code states that no application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the Application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV of the Code.

18As such, under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept a section 34 Application in circumstances where the allegations contained in the Application constituted the subject-matter or substantially the same subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

19In my view, all the allegations in the applicant’s section 34 Application that repeat the allegations that were in her complaint to the Commission and her section 53(3) Application are barred by section 53(8) of the Code, and can only serve as background information for her subsequent allegations.

TIMELINESS

20The statutory deadline for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in section 34 of the Code:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

21The respondents submitted that all the allegations in the Application that relate to incidents that occurred prior to December 30, 2008 should be dismissed because they are outside the one-year statutory deadline, and were not part of a series of incidents that continued in 2009. Specifically, there is a five to six month gap between the incidents that are alleged to have occurred up to August 2008, which are outside the one-year statutory deadline, and the next incidents that allegedly occurred in January and February 2009, which are within the one-year statutory deadline. The respondent further stated that the inclusion of the latter incidents was an attempt to turn an out-of-time Application into a timely one.

22In considering the meaning of the term “series of incidents” under section 34(1)(b) of the Code, the Tribunal has adopted the following definition of the word “series”: “a number of things or events of the same class coming one after another in spatial or temporal succession”: Pakarian v. Chen, 2010 HRTO 457 at para. 25. Furthermore, although the Tribunal has not specified what size of time gap will interrupt a series of incidents, in one case it noted that a gap of more than one year between incidents would, in most cases, interrupt the series: Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.

23I disagree with the respondents’ submissions. The narrative of the Application is somewhat vague in relating the alleged incidents to Code grounds, but it essentially alleges that after the applicant started claiming her rights under the Code in March 2008, the respondents began a series of actions against her that constituted harassment, discrimination and reprisal. I would add that the narrative includes an alleged incident in November 2008, which means that the temporal gap is significantly smaller than the dates set out in the respondents’ submissions.

24In view of my finding that the Application was filed with the Tribunal within one year after the last incident in a series of events, it is not necessary to apply the “good faith” and “substantial prejudice” tests in section 34(2) of the Code.

25The respondents’ request to dismiss part of the Application as out of time is therefore dismissed.

PRIMA FACIE CASE OF DISCRIMINATION

26The respondents requested that the Tribunal dismiss parts of the Application on the basis that the applicant has failed to establish a prima facie case of discrimination with respect to a number of the alleged incidents.

27In my view, this issue is best dealt with at a summary hearing, or, if the Application proceeds to a full hearing, by the Tribunal Vice-Chair or member assigned to the hearing.

28The respondents indicated that they intend to file a Request for Summary Hearing if the Tribunal does not dismiss the Application in its entirety on a preliminary basis. The Tribunal has not dismissed the Application in its entirety in this Interim Decision.

29Accordingly, the Tribunal directs the respondent Union to deliver to the applicant and file with the Tribunal a Request for Summary Hearing (Form 26) by no later than October 21, 2010. The applicant may file a Response to the Request using Form 11 by no later than 14 days after the Request was delivered to her.

30I am not seized of this matter.