HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lina Miraglia
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community Safety and Correctional Services
Respondent
Association of Management, Administrative and Professional Crown Employees of Ontario
Intervenor
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Miraglia v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Lina Miraglia, applicant ) Self-represented
Ontario (Community Safety and ) Jinan Kubursi, Counsel
Correctional Services), respondent )
1The applicant filed this Application on February 12, 2009, alleging discrimination in employment on the basis of age contrary to the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”). On March 31, 2009, she filed an amended version of her Application, which was also served on the respondents and to which they responded.
2Since that time, the applicant has filed a number of Requests for Order During Proceeding (Form 10): (1) asking to amend her Application; (2) requesting disclosure from the respondents; (3) requesting a Tribunal-ordered inquiry and (4) seeking an order to require the Human Rights Legal Support Centre to represent her. In addition, the respondents have filed two Form 10s, requesting the Tribunal (1) dismiss portions of the Application; and (2) remove the individual respondents as parties to these proceedings.
3In an Interim Decision, 2010 HRTO 2205, I ordered a half-day in-person case management hearing to hear oral submissions on these issues. The applicant continued to file more Form 10s, which led to a Case Assessment Direction dated March 25, 2011, giving further direction to the parties.
4At the case management hearing, held on May 5, 2011, the applicant and respondents were able to reach important agreements, thus limiting the issues on which I am required to rule. Where agreement was obtained, I have indicated the content of that agreement in the body of this Interim Decision.
REQUEST TO REMOVE INDIVIDUAL RESPONDENTS
5On September 29, 2009, the respondents filed a Request for Order During Proceedings (Form 10) seeking an order removing the individual respondents from the Application. The applicant filed a Form 11 opposing this Request.
6At the case management hearing it became apparent that the applicant was of the view that any individual named in the allegations set out in her Application had to be named as an individual respondent. Once this was clarified, the applicant indicated that she was not interested in proceeding against Glen Murray, Fay Patey, Frances McKeague, Mike Zimmerman and Noreen Alleyne. I ordered these individuals removed as party respondents at the case management hearing. The style of cause in this Interim Decision reflects that verbal order.
7The applicant stated that she wished to proceed against Carroll Robinson, who during the relevant period was the manager of the Selection Systems and Appointments Unit. She is seeking individual damages against him in the amount of $10,000.00.
8Rule 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. [Emphasis added]
9The 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:
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?
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.
10The respondent Ministry submits that there is no question that the government would be liable for Mr. Robinson’s conduct, and would be able to respond to or remedy the alleged conduct. It argues that there is no compelling reason to continue the proceeding against Mr. Robinson, and no prejudice caused to any party as a result of removing him as a personal respondent. It argues that with respect to the allegations against him, he was performing his job as manager and acting within the scope of his employment.
11The applicant asserts that an employee acting in a discriminatory manner is by definition acting outside the scope of his or her employment, but this line of logic has not been applied by the Tribunal.
12A review of the amended allegations (discussed below), shows that the applicant is alleging that there were “five events” which she asserts constitute discrimination. The first of these “events” was her failure to obtain the permanent position of project/policy development officer, which she had filled on a temporary basis for the three years preceding the competition. This is the only event in which Mr. Robinson is alleged to have acted in a discriminatory manner.
13The applicant alleges with respect to this competition, that Mr. Robinson did not provide assistance to the applicant when she requested it with respect to the interview for the permanent position. This allegation is also made against Noreen Alleyne. The applicant also alleges that Mr. Robinson also worked to “ensure the suitability” of the successful (younger) candidate, an allegation also leveled against Noreen Alleyne and Frances McKeague.
14The applicant also alleges that Mr. Robinson breached the AMAPCEO collective agreement in place. This is not an allegation of discrimination, but seems to be a proxy for her assertion that she could have been placed in the position rather than being required to compete for it. Moreover, she alleges that Mr. Robinson could have scored in a less harsh way during the interview itself, and that he could have asked probing questions as she alleges he did with respect to the successful candidate. He was one of a panel of three persons.
15Given this set of allegations, it is difficult to see that it was Mr. Robinson’s “individual conduct” that is a central issue. Indeed, the thrust of the applicant’s allegations are that the Government of Ontario had a preference for younger workers, and she implies that Mr. Robinson was carrying out this mandate when he went out of his way to ensure a younger candidate filled the position.
16In this scenario, even if the applicant is ultimately successful, it is unlikely that damages would be awarded against this individual respondent for which the respondent Ministry would not also be jointly and severally liable. Thus, the fact that the applicant happens to be seeking damages against this respondent personally is not a compelling reason to maintain him as a party to the proceeding.
17For all of these reasons, the respondent’s Request is granted and the personal respondent, Carroll Robinson, is removed as a party to this proceeding. The style of cause has been amended accordingly
REQUEST TO DISMISS PORTIONS OF THE APPLICATION
18The respondent Ministry sought to dismiss the allegations concerning what the applicant labels “event two” as well as to dismiss the allegations of systemic discrimination. With respect to the former request, the respondent indicated that it was not clear what it had to respond to in light of the fact that the applicant does not assert she applied for any jobs in the February 2008 to February 2009 period.
19The applicant explained during the case management hearing that she had made a request of various managers to keep her in mind for secondment opportunities, and while those opportunities came up, she was not approached while younger employees were. After hearing the applicant’s explanation, counsel for the respondent Ministry indicated that she was prepared to abandon this request.
20With respect to the removal of the allegations of systemic discrimination, the respondent Ministry asked the Tribunal to hold this request in abeyance. Counsel for the respondent Ministry indicated that it may ask to deal with this at a later date, or it may deal with this as a matter of evidence.
21In light of the respondent Ministry’s position, I indicated in the case management hearing that I was prepared to dismiss the portion of the respondent’s Request for Order concerning “event two,” and hold the remaining portion of the Request in abeyance sine die.
REQUEST TO AMEND APPLICATION
22The first Request for Order During Proceeding (Form 10) filed by the applicant, dated April 17, 2009, asked to amend her Application by adding further particulars. Since that time, the applicant has brought further requests, including a Form 10 dated February 23, 2011 in which the applicant asks to amend her Application to include further particulars, which are set out in 44 single-spaced typewritten pages.
23At the case management hearing, I explained to the applicant that particulars need only be those facts that she alleges constitutes the discriminatory conduct. Her February 23, 2011 request appeared to contain numerous pages of evidence and argument, which was not necessary or appropriate.
24The applicant explained that she had attempted to distil her allegations in preparation for the case management hearing, and the end product was a three page document entitled “Review of the Allegations Made and Requested to Add,” which is dated May 5, 2011 (the “May 5, 2011 review”). Both the applicant and respondent were content to substitute these allegations for the allegations found in her March 31, 2009 “revised” Application.
25Having had a chance to review these allegations, I find it appropriate to add, as opposed to substitute, these allegations to her March 31, 2009 Application. While there is some overlap, the May 5, 2011 review fails to clearly set out that there are three “events” in which the applicant was originally alleging she experienced age discrimination.
26The May 5, 2011 review, in addition to clarifying the original allegations, details two further competitions in 2010 and 2011 which the applicant unsuccessfully applied for. Counsel for the respondent indicated that she was not opposing amending the Application to include these allegations because she was aware that the applicant could file a further Application concerning these events, and that it would be more expeditious to deal with the allegations in the context of one hearing.
27I indicated that I was permitting these amendments, but warned that the applicant could not continue to add further competitions thus preventing the Tribunal from finally adjudicating this Application. The applicant indicated that she was not planning to continue applying for jobs within the respondent Ministry.
28With respect to the issue of remedy (in answer to question 9 of the Application), the applicant indicated that she had at various times asked for differing lump sums of money as she was not certain what she might be entitled to. The applicant indicated that she wished to substitute the statement of remedies found at 3. b) of her February 23, 2011 omnibus request. The respondent Ministry agreed to this amendment. In light of the greater clarity and detail found in this document, I order that the requested substitution take place.
29At this point, the Tribunal’s file concerning this Application is already very thick and contains at least two different versions of the Application and numerous documents seeking amendments to it. This could be the source of some confusion in the future.
30To avoid this confusion, the applicant is directed to file by June 6, 2011 an amended Application in which she uses, as her base, the March 31, 2009 revised Application. She is directed to add the May 5, 2011 review (three pages) to her answer to question 8 and substitute her February 23, 2011 statement of remedies for her answer to question 9. The applicant is directed not to make any additional revisions to the document in preparing this amended Application.
31The respondent has requested an opportunity to file a revised Response, in light of the additional allegations and clarifications. At the case management hearing, a time frame was discussed, and it was agreed that this amended Response should be filed by June 27, 2011.
REQUEST FOR REPRESENTATION BY THE HUMAN RIGHTS LEGAL SUPPORT CENTRE
32The applicant was unable to point the Tribunal to any authority by which it could make this order. At the case management hearing, I advised the applicant that I had no jurisdiction to make such an order and dismissed her Request that the Tribunal appoint the Human Rights Legal Support Centre to represent her.
REQUEST FOR PRODUCTION OF DOCUMENTS
33The parties attended a Tribunal mediation on October 7, 2009, at which time an agreement was reached on disclosure of arguably relevant documents. The applicant does not dispute that the timelines were met, but is not in agreement with the respondent on its definition of what is arguably relevant. She filed a comprehensive request for production on October 23, 2009.
34In the case management hearing I explained to the applicant that Rule 16 of the Tribunals’ Rules of Procedure governs the disclosure and production of documents. In the normal course, this Rule is triggered by receipt of the Notice of Hearing. At this stage no Notice of Hearing has been issued. I advised the applicant that her request is, therefore, premature, but can be revived if she is unable to access the documents in the respondent Ministry’s possession that she believes she is entitled to during the appropriate time period.
REQUEST FOR A TRIBUNAL ORDERED INQUIRY
35The applicant made a Request for a Tribunal Inquiry on May 27, 2009, which was opposed by the respondent Ministry. The Tribunal’s authority to order an inquiry in certain circumstances is derived from s. 44 of the Code:
44 (1) At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,
(a) an inquiry is required in order to obtain evidence;
(b) the evidence obtained my assist in achieving a fair, just and expeditious resolution of the merits of the application; and
(c) it is appropriate to do so in the circumstances.
36In her Request, the applicant states that the purpose of the inquiry would be gather what would appear to be a vast number of documents from the respondent Ministry, in order to demonstrate that there is Division-wide preference for younger employees.
37In other cases involving requests for a Tribunal ordered inquiry, the Tribunal has ruled that such an inquiry is not to be “a substitute for the usual production process contemplated by the Rules.” As is discussed above, the applicant has also made a substantial production request, which may at some point have to be adjudicated, but which at this stage is premature.
38At the case management hearing, the applicant submitted that she did not simply want the Tribunal ordered inquiry in order to obtain these documents, but so that someone with expertise could analyze the statistical data, which she states is something she does not have the capacity to do herself and cannot afford to hire someone else to do.
39She also submitted at the case management hearing that there are a lot of employee complaints and grievances concerning age discrimination against different Ministries, and it would be cheaper and more expeditious in the long run if the Tribunal handled everything at once. It is not clear on what basis the applicant is suggesting that age discrimination complaints and grievances are common.
40I do not accept the applicant’s argument that the Tribunal can expeditiously deal with the issue of age discrimination by conducting its own inquiry. On the contrary, the nature of the inquiry contemplated by the applicant would greatly delay the resolution of the merits of her Application. Moreover, the delay would be incurred in order to obtain evidence that would not necessarily relate to the circumstances of the applicant’s individual case.
41The Request for a Tribunal Ordered Inquiry is denied.
ORDERS
42The following orders are confirmed:
a) the personal respondents Glen Murray, Fay Patey, Frances McKeague, Mike Zimmerman, Noreen Alleyne and Carroll Robinson are removed;
b) the respondent’s Request to dismiss the portion of the application concerning “event two” is denied and the remaining portion of the respondent’s Request to dismiss a portion of the application is held in abeyance sine die;
c) the Request that the Tribunal appoint the Human Rights Legal Support Centre to represent the applicant is denied;
d) the applicant’s Request for production is denied as premature; and
e) the applicant’s Request for a Tribunal Ordered Inquiry is denied
DIRECTIONS
43The Tribunal directs the applicant to file an amended Application by June 6, 2011:
a. by adding the May 5, 2011 review to her answer to question 8 of the March 31, 2009 revised Application;
b. substituting her February 23, 2011 statement of remedies for her answer to question 9; and
c. not making any additional revisions to the revised Application in preparing this Application.
44The Tribunal directs the respondent to:
a. file its amended Response by June 27, 2011
45I am not seized of this matter.
Dated at Toronto, this 30th day of May, 2011.
“Signed by”
Naomi Overend
Vice-chair