HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Anna Colella
Applicant
-and-
Toronto Catholic District School Board
Respondent
-and-
Canadian Union of Public Employees and its Local 1280
Intervenor
Interim DECISION
Adjudicator: David Muir
Indexed as: Colella v. Toronto Catholic District School Board
1This is an Application filed on June 29, 2009 pursuant to section 53(5) of the Ontario Human Rights Code R.S.O.1990, c. H.19, as amended (the “Code”). The applicant, in the human rights complaint underlying this Application alleges that her right to be free of discrimination and harassment in the workplace in respect of an alleged disability and sex has been infringed by the respondents.
2This Interim decision deals with two Request for Order During Proceedings (Request) filed by the respondents. One seeking early dismissal of the Application either because it was out of time or, pursuant to section 45.1 of the Code, because the elements of the Application had been appropriately dealt with in another proceeding. The other is a Request filed by the respondents seeking to have the individual respondents removed as parties to the Application.
3In 2010 HRTO 1768 I dismissed several allegations in the Application on the basis that they were out of time having occurred in some cases several years prior to the human rights complaint being filed with the Ontario Human Rights Commission. The respondents also sought the dismissal of other elements of the Application on the basis that they had been appropriately dealt with in one or more grievance arbitration proceedings. This issue was in part rendered moot by my determination that many of the allegations were out of time. In respect of the remaining allegations one did not appear to have been the subject of a grievance and the other might have been but the status of that proceeding was unclear. I directed the parties to provide submissions on the status of a particular grievance that appeared to have been unresolved. Based on the submissions received while the status of the grievance (L-16-07) may be disputed by the applicant it does not appear to relate to any of the allegations in the complaint and therefore is outside the scope of the complaint.
4It remains to consider the two remaining allegations in the complaint which for convenience are paraphrased here:
In July 2006 the applicant alleges that pictures of women in bikinis were posted in a washroom used by staff. The applicant also alleges that a skeleton with male genitalia was hung on a refrigerator used by staff. The applicant alleges that when she reported this is to a manager he was dismissive of her concerns.
The applicant alleges that in 2006/2007 she was at St. Francis Xavier School and was harassed by the Vice-Principal, Joe D. The applicant alleges that because of this harassment she was required to take a leave from work.
5The respondent employer states that the allegation regarding inappropriate pictures in a common area frequented by the applicant was the subject of a grievance that did not proceed to arbitration and was abandoned. There is no documentation to support this contention at this stage, nor is there any evidence of the circumstances surrounding the abandonment of the grievance if that is what has occurred. Moreover the abandonment of a proceeding is not obviously an appropriate resolution of the dispute and in the absence of any indication of the circumstances surrounding the abandonment I am not prepared to find that the substance of this aspect of the complaint has been appropriately dealt with as contemplated by section 45.1 of the Code.
6The respondent employer states that the allegation of harassment by a Vice-Principal in the academic year 2006/2007 were included in LS-01-07 which related to a disciplinary letter for leaving work early in February 2007. During the course of the grievance procedure the employer offered to amend the letter in a significant way and this was accepted by the intervenor, apparently on the basis that they concluded that the grievance was unwinnable. Based on the material filed the applicant appears to have disagreed with the intervenor’s position and urged that it proceed further with the grievance. Despite the applicant’s position the intervenor did not proceed with the grievance.
7I am not satisfied that the harassment allegation has been appropriately dealt with at this stage. While it appears likely that the issue raised in the grievance might form part, possibly a substantial part of the allegation in the complaint, it is not plain and obvious at this stage that it captures the entire substance of the allegation in the complaint being an allegation of a vexatious course of conduct. The respondent employer makes a fair point that the allegation is completely devoid of particulars and in the absence of particulars definitive conclusions on this issue are impossible. A Direction requiring particulars of this allegation is made below. However it does appear based on the materials filed that there was an ongoing conflict between the applicant and the Vice-Principal at St. Francis Xavier School some or all of which may be particulars of this allegation.
Removal of Personal Respondents
8The respondents seek the removal of all of the personal respondents on the basis that the individuals identified were all acting within the scope of their employment, implementing corporate policies and procedures. The respondents also state that the corporate respondent accepts liability for any infringement found to have been committed by any of the individuals identified in the Application and that it is capable of satisfying any remedial Orders that might be made should there be findings of liability.
9The applicant made no submissions in response to this Request.
10The principles that Tribunal has considered when dealing with this issue have been set out in enunciated in Persaud v. Toronto District School Board 2008 HRTO 31:
11Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para 42:
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.
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:
Is there is 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 is 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?
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.
12To answer the question posed in the passage immediately above, it is not necessary to the fair, just and expeditious resolution of this Application that the individuals identified remain respondents. I am satisfied that for the most part these individuals were acting within the scope of their authority and were by and large merely implementing corporate or organizational policy and decisions. I am also satisfied that there is a corporate respondent which has acknowledged that it is responsible for their actions if any liability is found and that the respondent employer is able to respond to any remedy that might be awarded. Finally it is not evident that there would be any prejudice to any party if any of the identified individuals are removed from the Application.
13The personal respondents are removed from this Application and the style of cause amended accordingly.
Case Assessment Directions
14In order to ensure the fair, just and expeditious adjudication of the remaining elements of this Application the Tribunal makes the following Case Assessment Directions:
a. The applicant will provide full particulars of the remaining two allegations as described above at paragraph 4 above. These particulars will provide full details of the events that the applicant is relying upon in relation to these two general allegations. The applicant will provide these particulars within 30 days of the date of this Interim Decision.
b. The respondents will identify their witnesses necessary to respond to the allegations provided by the applicant, together with detailed will says of their evidence in response to the allegations. The respondent will provide this material within 60 days of receipt of the applicant’s particulars.
c. The parties will provide the Tribunal with their available dates for a one day hearing in April or May 2011 within 10 days of the date of this Interim Decision.
15I am seized.
Dated at Toronto, this 3rd day of December, 2010.
“Signed by”
David Muir
Vice-chair