Parker v. Mississauga (City), 2010 HRTO 2446

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charlene Parker

Applicant

-and-

The Corporation of the City of Mississauga, Dara Marcoccia and Rohan Abbey

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: December 9, 2010

Citation: 2010 HRTO 2446

Indexed as: Parker v. Mississauga (City)

WRITTEN SUBMISSIONS BY

Charlene Parker, Applicant ) Cecil Norman, Representative

The Corporation of the City of ) Mississauga, Pam Hooke, Mickey Frost ) Erin R. Kuzz, Counsel and Dara Marcoccia, Respondents )

Rohan Abbey, Respondent ) Self-represented

1The applicant filed an Application under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on June 8, 2010 alleging discrimination and reprisal with respect to employment on the basis of disability and sex.

2In summary, the applicant alleges that the respondent employer was aware of the fact that she was the object of rumous in the workplace and that, as result of the respondent employer’s failure to curtail the rumours, she was sexually harassed and assaulted. The applicant alleges that the respondent employer and three personal respondents (Marcoccia, Hooke and Frost) ignored her concerns with respect to a poisoned work environment.

3The respondent employer and personal respondents Marcoccia, Hooke and Frost (collectively “the three personal respondents”) filed a Response on October 29, 2010, denying the allegations of discrimination. The respondents also submit that they took appropriate steps to investigate and address the applicant’s concerns. Personal respondent Abbey filed a Response on November 5, 2010, wherein he denies the allegations of sexual harassment and assult.

4On October 8, 2010, the respondents filed a Request for Order During Proceedings asking the Tribunal to remove the three personal respondents.

5The applicant objects to the respondents’ Request to remove the three personal respondents. The applicant submits the personal respondents played a major role in the discrimination she experienced.

DECISION

6Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined a “non-exhaustive list of factors” that may be helpful in assessing whether a personal respondent should be removed including:

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?

7The respondents submit that all the factors outlined above support removal of the three personal respondents. They note that there is no issue with respect to deemed or vacrious liability of the corporate respondent for any alleged breach of the Code. They maintain that the allegations against the three personal respondents relate to their actions as employees of corporate respondent and, at all material times, the three personal respondents were acting within the course of their employment. They submit the corporate respondent is best placed to respond to and remedy any alleged Code infringement. The respondents suggest that there are no compelling reasons for continuing the proceedings against the three personal respondents given that the applicant does not seek any specific remedy against them.

8On my review of the Application, Responses and submissions, I am satisfied that two personal respondents (Hooke and Frost) should be removed from this proceeding. I find that all the factors present in favour of removal of these two respondents. The allegations with respect to Frost relate directly to correspondence he authored as a manager and do not appear to impugn him for any personal behaviour. There are no specific allegations against Hooke in the Application. In these circumstances, I do not see a compelling reason to continue this Application against personal respondents Hooke and Frost. As such, these respondents are removed from the Application and the style of cause amended accordingly.

9However, on review of the Application, there appears to be an allegation about the personal respondent Marcoccia’s remark during a meeting. The applicant’s primary concern is that the respondents were allegedly aware of the hostile work envioronment and did nothing to protect her or provide her with a harassment free workplace. The applicant makes the specific allegation that personal respondent Marcoccia stated that because the corporate respondent allowed the applicant to return to work, following an investigation and disability leave, that there was no need to clear the applicant’s name.

10While I appreciate that there is no issue with respect to the first three Persaud factors, I find there is a compelling basis to continue with personal respondent Marcoccia as a named party in this proceeding. Tribunal jurispurdence has held that it is appropriate to continue the proceeding as against the personal respondent where it is the individual conduct of the personal respondent that is a central issue. See Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155 and Bianca v. Maritime Travel, 2010 HRTO 1077. It appears from the Application that the conduct of the personal respondent Marcoccia is an issue at the heart of the applicant’s allegations. In my view, it would be premature to remove personal respondent Marcoccia at this point in time.

11Therefore, the respondents’ Request is granted with respect to personal respondents Hooke and Frost and dismissed with respect to personal respondent Marcoccia.

12I am not seized.