Bartlett v. Hydro One Networks Inc., 2010 HRTO 2502

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tanya-Joy Bartlett

Applicant

-and-

Hydro One Networks Inc., Stu Smith, Jordan Varley, Kyle Clothier and Tom Stilling

Respondents

-and-

Canadian Union of Skilled Workers

Intervenor

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: December 16, 2010

Citation: 2010 HRTO 2502

Indexed as: Bartlett v. Hydro One

1This is an Application filed on March 10, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination and harassment with respect to employment on the basis of sex and that she was subject to reprisal or the threat of reprisal for seeking to enforce Code protected rights. The Application named the employer and four individuals as respondents.

2All respondents named by the applicant have now filed Responses. In its Response, Hydro One Networks Inc. (“HONI”) names the Canadian Union of Skilled Workers (the “union”) as a respondent.

3The Union has filed both a Response (Form 2) in which it submits it is improperly named as a respondent and a Request to Intervene (Form 5). The four individual respondents seek to be removed as parties, a remedy opposed by both the applicant and HONI.

4The purpose of this Interim Decision is to address the issue of the union’s role in these proceedings as well as the request made by the personally named respondents

The Union’s Role in this Application

5The union argues that it is not a properly named respondent as there is no allegation by the applicant that it has infringed the Code. It argues that HONI has improperly characterized the matters before the Tribunal as an internal union dispute.

6While acknowledging that the union’s constitution offers the potential for resolution of complaints between union members, it points out that the policy does not apply to non-members, members acting in a supervisory capacity or the employer. It further states that the applicant has not filed a complaint under the union’s constitution, the respondent Smith filed and withdrew a complaint under the constitution against the applicant and that the only ongoing complaint is one which the “south west unit” filed against the respondent Smith.

7Finally, the union takes issue with the position outlined by HONI that the applicant and personal respondents have an ongoing and direct relationship with the union (HONI has described the union as the “labour broker”) and not the employer, HONI, because of the episodic nature of employment in the construction industry.

8Despite the general characteristics of the industry, the union points out that the applicant has been steadily employed by HONI since September 2006 and the respondent Smith since 2000, which it argues constitute ongoing and direct relationships. The union states that HONI, like employers in all industries, retains primary control over its employees and is accountable for their safety.

9The applicant has not filed a Form 11 in response to the union’s intervention request; neither have the personal respondents. However, the applicant, in her Reply, agrees with the union’s position that HONI has mischaracterized the substance of the matters before the Tribunal as an internal union dispute and she confirms that she has not filed a complaint under the union’s constitution.

10HONI opposes the intervention request and argues that the union should be a party as it is a necessary organizational respondent.

11It advances the theory that it should not be held responsible for allegations relating to CUSW union related matters over which HONI has no control. It argues that the union’s failure to resolve internal union related issues could be found to have caused or contributed to the acts of discrimination and harassment that are the subject matter of this complaint.

12It argues that the relationship in the construction industry between employers and employees resembles a “labour market” with the union taking on a “labour broker” role and that the applicant and personal respondents have a direct and ongoing relationship with the union and not with HONI.

13HONI argues that CUSW has human rights responsibilities to its members and should, therefore, be named as a respondent in this matter, that it has a potential role in authorizing remedies and that the union determines which members are sent to work and alleges that HONI has no control over who is sent from the Hiring Hall.

14I am not persuaded by HONI’s argument that the union is a properly named respondent in this matter. The applicant did not choose to resolve issues under the scheme provided for members by the union. She has elected to pursue her Application before the Tribunal and has made no allegations that the union violated her Code protected rights but has, rather, named the employer for whom she has worked since September 2006 and individual respondents, also employed by HONI during the material times.

15The union has sought to intervene as it clearly has an interest in the litigation. In the circumstances I am satisfied that the union should be granted intervenor status.

Request to Remove the Individual Respondents

16Rule 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, 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.

17The 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.

18The employer and the applicant oppose the request made by the individual respondents to be removed as parties and point out that the allegations made in the Application against the personal respondents involve harassment for which they may be found to be personally liable.

19The allegations involve a contravention of s. 5(2) of the Code. Section 46.3(1) of the Code reads as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

20In the circumstances, the request made by the personal respondents to be removed as parties to this Application is denied.

Order

21The Canadian Union of Skilled Workers is removed as a party to this Application and added as an intervenor. It is unnecessary for the Registrar to provide the union with copies of the materials filed by the parties to date given the union’s involvement thus far. The parties are instructed to copy the union with any subsequent materials in this matter.

22The extent of the union’s participation in the hearing will be determined by the presiding Vice-chair or Member.

23I am not seized of this matter.