Kell v. Comstock Canada, 2010 HRTO 849

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Vicki Kell

Applicant

-and-

Comstock Canada Ltd. and Vernon Stoddart

Respondents

-and-

Labourers International Union of North America, Local 1059

Intervener

INTERIM DECISION

Adjudicator: Sherry Liang

Date: April 19, 2010

Citation: 2010 HRTO 849

Indexed as: Kell v. Comstock Canada

1This is an Application filed on October 27, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).

2The Request to Intervene by the Labourers International Union of North America, Local 1059 (Local 1059) is granted.

3The applicant alleges discrimination on the grounds of sex, sexual solicitation or advances, family status and marital status, as well as a reprisal or threat of reprisal under the Code. She states that on April 28, 2009, she was sexually harassed and solicited for sex from an individual while working at the Bruce Power Nuclear Plant (Bruce Power). In her narrative, she describes how she reported the incident to her immediate supervisor, and describes the ensuing investigation. She states that she was told that there was no evidence to support her allegation, and that she expressed disagreement with how the investigation was done. She states that she was laid off on June 8, 2009, which she believes was due to this incident.

4The applicant has provided a copy of a letter from the Director Health & Safety, Bruce Power A L.P., confirming the result of its investigation into the incident, and other arrangements regarding the applicant’s pay and work schedule.

5The applicant alleges that the individual respondent approached her about her allegations and asked her to “drop charges” against the alleged harasser. The individual respondent is a union steward with Local 1059 on the Bruce Power site. It does not appear that he worked for Bruce Power at the time of the events, although he worked on the job site for the corporate respondent. The corporate respondent is one of a number of contractors performing work at Bruce Power The individual against whom the applicant made the allegations of harassment, and who is not named in this Application, is a member of Local 1059.

6The named corporate respondent, Comstock Canada Ltd, has filed a Response as well as Request for an Order During Proceedings. It states, among other things, that it has never been the employer of the applicant. In the applicant’s Reply, she does not disagree. She appears to state that she has named Comstock as a respondent because it was the employer of the individual respondent, Vernon Stoddart.

7Both respondents have requested early dismissal of the Application, or to be removed as respondents to the Application. Among other things, they take the position that the applicant has field to set out a prima facie case of a violation of the Code against them. The individual respondent states that he is not the applicant’s union steward. The corporate respondent states that it has never been the applicant’s employer and further, even if the individual respondent is found to have violated the Code, it is not responsible for his conduct. Both respondents take the position that none of the allegations could lead to a finding under that they have breached the applicant’s rights under the Code.

8The Tribunal finds it appropriate to direct a one-day hearing to determine the requests made by the respondents.

9The parties should attend at the hearing prepared to address the following issues:

• Whether the Application should be dismissed against either of the respondents on the basis that they are not necessary or proper parties to the Application;

• Whether part or all of the allegations in the Application should be dismissed on the basis that they could not support a finding of discrimination or reprisal under the Code against either or both of the respondents.

10If any party wishes to rely on any written materials (including written submissions, documents or case law) or facts not already before the Tribunal, they must deliver such additional material to the other parties and file it with the Registrar no later than two weeks before the date of the hearing.

11The Tribunal is aware that the intervener has filed a Request for Order asking that this Application be consolidated and heard together with another Application filed by the applicant, in Tribunal File No. 2009-03914-I (the Crosby Application). The Crosby Application is at a different stage, and the corporate respondent in that matter has not yet filed a Response or had an opportunity to respond to the request to consolidate. The Tribunal will consider the request to consolidate after the date for filing a Response in the Crosby Application has elapsed.

12A copy of this Interim Decision will be sent to the parties to the Crosby Application.

13I am not seized of this matter.