Wilson v. Work Able Centres, 2011 HRTO 1898

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Julie Wilson Applicant

-and-

Work Able Centres Inc. Respondent

A N D B E T W E E N:

Julie Wilson Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Finance (Financial Services Commission of Ontario) Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: October 20, 2011 Citation: 2011 HRTO 1898 Indexed as: Wilson v. Work Able Centres

1These are two Applications filed June 30, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The complaint underlying the Application against Work Able Centres Inc. ("Work Able") and Louise Korhonen was filed with the Ontario Human Rights Commission on November 8, 2005, and the complaint underlying the Application against the Financial Services Commission of Ontario ("FSCO") was filed with the Commission on February 28, 2006.

2The Applications relate to the requirement for the applicant to attend at the Work Able location in Barrie, Ontario for an assessment. The applicant alleges that Work Able and Ms. Korhonen discriminated against her on the basis of disability by refusing to permit her facilitator to attend the examination with her, and that FSCO failed to take appropriate steps to respond to this alleged denial of accommodation.

3The purpose of this Interim Decision is to address the Request for Order dated May 9, 2011, filed by the respondents Work Able and Ms. Korhonen seeking removal of Ms. Korhonen as a personal respondent.

4The principles relating to the removal of personal respondents are stated in Persaud v. Toronto District School Board, 2008 HRTO 31, as follows:

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?

5In this case, Work Able also is alleged to be liable for the conduct of Ms. Korhonen at issue in this proceeding, and Work Able has accepted its deemed or vicarious liability for any conduct by Ms. Korhonen. There also, in my view, is no real issue as to Work Able'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 Ms. Korhonen. This depends, of course, upon a review of what specific allegations are made in the Application as against Ms. Korhonen and whether the nature of those allegations provide a compelling reason to continue the proceeding as against her personally.

7Ms. Korhonen at the material time was the Facility Director for Work Able and the signatory on three letters sent to the applicant dated November 30, December 7 and December 21, 2004. In the first of these letters, dated November 30, 2004, in response to correspondence received from the applicant, Ms. Korhonen on behalf of Work Able questions whether it is in the best interests to proceed with an assessment of the applicant by Work Able as a result of concerns raised by the applicant. No reference is made in this letter to the applicant's request for accommodation by being permitted to attend the assessment with a facilitator, other than a general statement that Work Able believes it is able to accommodate the parties.

8The second letter, dated December 7, 2004, was written in response to correspondence received from the applicant's insurer dated December 1, 2004. This letter states that the insurer had requested that Work Able proceed with the assessment, and accordingly Work Able agreed to do so. In relation to the issue of accommodation raised in this proceeding, this letter makes reference to Work Able's standard policy to allow only the claimant to sit in on the assessment with the examiner, other than in specific instances where there is a need for a chaperone or interpreter. As a result, it is stated that a facilitator would not be allowed to attend the assessment process.

9The third letter, dated December 21, 2004, was written in response to further correspondence received from the applicant. With regard to the accommodation issue, this letter states that Work Able would accommodate any disability the applicant may have. Reference is made to Work Able's standard practice of only allowing the claimant to attend the appointment with the examiner, but states that if the examiner feels that assistance is required, they would advise of the need for same. The letter indicates that Work Able wished to be clear that only the applicant would be allowed to sit in with the examiner, unless the examiner at their discretion agreed to have someone else sit in.

10In my view, in writing these letters, Ms. Korhonen was acting in a representative capacity for Work Able arising out of her role as Facility Director and was communicating corporate policies to the applicant. These circumstances do not, in my view, provide any compelling reason to continue this proceeding as against Ms. Korhonen personally.

11In the applicant's response to the Request for Order, she states as a reason for continuing this proceeding as against Ms. Korhonen that she failed to account for the fact that two of the assessors were not qualified. That is not an issue in this proceeding, which pursuant to s. 53(5) of the Code must be based upon the subject matter of the complaint as filed with the Commission. The complaint as filed with the Commission raises the issue of an alleged failure to accommodate the applicant's needs by not permitting her to be accompanied at the assessment by a facilitator. No issue is raised in the complaint as to the qualifications of the intended assessors.

12The applicant also states that Ms. Korhonen must explain why the December 1, 2004 letter from the insurer was sufficient for her to do an "about face" in relation to her November 30, 2004 letter. I expect that Ms. Korhonen will be called by Work Able as a witness to testify in this proceeding, and such questions, to the extent they are relevant to the issues in this proceeding, may be asked of Ms. Korhonen at that time. But that is not a basis upon which to assert that there is a compelling interest in maintaining Ms. Korhonen's status as a personal respondent in this proceeding.

13For these reasons, the request is granted and Ms. Korhonen has been removed as a personal respondent. The title of proceeding has been amended accordingly.