HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Spring Strand
Applicant
-and-
TeleTech Canada Inc., Kerri Dryden and Trevor Forrester
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Strand v. TeleTech Canada
WRITTEN SUBMISSIONS
Spring Strand, Applicant ) Rod Catford, Counsel
TeleTech Canada Inc., Kerri Dryden ) Julie A. Curtis, Counsel and Trevor Forrester, Respondents )
1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. c. H.19, as amended (the "Code"), dated June 9, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the "Commission") on September 30, 2007.
2The applicant alleges that she experienced discrimination because of disability and reprisal in respect of employment contrary to ss. 5, 8 and 9 of the Code, arising out of an alleged failure to accommodate her disability-related needs.
3The purpose of this Interim Decision is to address the respondents' request for removal of the personal respondents.
4The principles relating to the removal of personal respondents are stated in Persaud v. Toronto District School Board, 2008 HRTO 31, as follows:
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 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?
5In this case, the respondent company also is alleged to be liable for the conduct at issue in this proceeding, and the respondent company has accepted its deemed or vicarious liability for any conduct by the personal respondents, as they were acting in the course of their responsibilities as employees of the company. There also, in my view, is no real issue as to the respondent company's ability to respond to or remedy the alleged Code infringement.
6As with most cases involving a request for removal of personal respondents, the question comes down to whether there is any compelling reason to continue the proceeding as against the personal respondents. This depends, of course, upon a review of what specific allegations are made in the Application as against each personal respondent and whether the nature of those allegations provide a compelling reason to continue the proceeding as against that individual personally. As a result, I will review the allegations made as against each of the personal respondents at issue.
7Trevor Forrester was the Site Supervisor at the material time. The complaint alleges that on August 13, 2007, the applicant expressly discussed her request for accommodation with Mr. Forrester. At this time, the accommodation sought by the applicant was to have any work involving keyboarding duties limited to two hours per day with the balance of her eight-hour day devoted to non-keyboarding duties. Keyboarding was required as part of the applicant's duties when she was taking phone calls from customers. The applicant alleges that Mr. Forrester said that he couldn't offer her the accommodation she requested, because the applicant's time couldn't be billed if she wasn't on the phones. The applicant further alleges that Mr. Forrester said that if he provided the applicant with the requested accommodation, then any employee could come to him "with a hangnail" and have their work modified. The applicant alleges that she spoke with Mr. Forrester again on August 17, 2007, to advise him of the duty to accommodate under the Code, and that Mr. Forrester responded that he was aware of this duty and that he was "in the right".
8I appreciate that the statements attributed to Mr. Forrester are disputed facts. I also appreciate that the respondents dispute whether the duty to accommodate required them to afford the applicant with non-keyboarding duties to fill out the remaining eight hours of her work day. These are issues that will need to be determined at the hearing. However, in my view, it is clear from the face of the complaint that the applicant has made allegations relating directly to Mr. Forrester's personal conduct and actions which, if true, may provide a basis for personal liability under the Code and which form part of the central matters at issue in this proceeding. Accordingly, I am not satisfied that it would be appropriate to remove Mr. Forrester as a personal respondent at this stage of the proceeding.
9Kerri Dryden was the Service Delivery Manager at the material time, and appears to have been at a higher level of management than Mr. Forrester. The complaint alleges that on August 17, 2007, the applicant met with Mr. Dryden and another company representative to discuss the accommodation she had requested. The complaint alleges that the applicant met again with Mr. Dryden on September 17, 2007. It is alleged that Mr. Dryden told the applicant that she had two options: either go off on a leave of absence or accept a reduction in her hours to four hours per day. On September 24, 2007, the complaint alleges that the applicant provided a medical note indicating that she could only perform three hours of keyboarding duties per day, and that her hours of work were reduced to three hours per day.
10Once again, I am aware that some of these allegations are disputed by the respondents. However, in my view, it is clear that the applicant alleges that it was Mr. Dryden who made the decision that she was only entitled to work the hours that she could perform keyboarding duties. Whether or not the duty to accommodate required the respondents to provide the applicant with non-keyboarding duties for the balance of her eight-hour work day is the core issue in this proceeding. As it is alleged that Mr. Dryden was the one who made the decision to restrict the applicant to the hours that she could perform keyboarding duties, it is my view that his actions and conduct are central to the matters at issue in this proceeding. Accordingly, I am not satisfied that it would be appropriate to remove Mr. Dryden as a personal respondent at this stage of the proceeding.
11For these reasons, the respondents' request for removal of the personal respondents is denied.
Dated at Toronto, this 14th day of December, 2010.
"Signed by"
Mark Hart
Vice-chair