HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Osmand Bangura
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Community and Social Services
Respondent
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Bangura v. Ontario (Community and Social Services)
1The applicant filed an Application on June 23, 2010, under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"), alleging discrimination (including harassment) in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, sex and marital status. A grievance before the Public Service Grievance Board (PSGB) was withdrawn prior to a hearing on its merits.
2There are two outstanding Requests for Order During Proceedings ("Request"s) in this matter. The applicant filed a Request to amend his Application to include the ground of reprisal. The respondents filed a Request to remove the individual respondent as a party to this proceeding.
The Request to amend
3The applicant claims both discrimination and harassment occurring during his employment with the Family Responsibility Office of the respondent Ministry. He reported to the individual identified as the personal respondent in this matter. His employment was terminated on February 22, 2010. On October 18, 2010, the applicant filed his Request to amend. His request states that he recently became aware that after he had filed his Application, the personal respondent told one or more of his former co-workers that he had "named them as personal respondents and that he wanted his co-worker and all female Managers at the Family Responsibility Office to be investigated and fired", or words to that effect.
4The applicant's Request states that the personal respondent's comments "have caused further injury to [his] reputation and have exacerbated his stress, anxiety and anger".
5It appears from the wording of the Request that the applicant is alleging that these remarks may have been made to more than one former co-worker, although he mentions having been told about this by one former co-worker.
6The respondent opposes the amendment. The respondent cites Noble v. York University, 2010 HRTO 878 and argues that the applicant's allegation, even if it were established, meets none of the criteria cited in that decision. I cannot agree with the respondent's submissions. The applicant alleges that the personal respondent said two things; that the applicant had named one or more former co-workers other than the speaker as personal respondents (which is manifestly incorrect in regard to this Application), and that the applicant wanted one or more former co-workers and all female Managers at the Family Responsibility Office to be investigated and fired. While an individual who has been named as a personal respondent to an Application may rightly or wrongly feel resentment and express it in the privacy of his or her own family, the alleged comments, if made as alleged to one or more former co-workers of the applicant, could be considered "an action taken against" the applicant. The alleged comments certainly appear to be "related to the [applicant] having claimed, or attempted to enforce a right under the Code"; and, absent further explanation, could be seen as an attempt "to retaliate for the claim or attempt to enforce the right" by allegedly attributing to the applicant both bad faith and hostility to "female Managers" (see Noble, above, at para. 33).
7A hearing date has not been set. The timing of the requested amendment does not appear to me to raise issues of unfairness to the respondent. The applicant's Request to amend the Application to add the specified allegation of reprisal is allowed.
8In allowing the amendment, I stress that whether the alleged actions occurred, and if so, whether they amounted to a reprisal in the circumstances, is for the Tribunal adjudicator to decide after hearing evidence.
The Request to remove the personal respondent
9Both parties have now filed materials setting out their version of events and their positions. While the personal respondent was the applicant's supervisor, it is not clear on the basis of the written materials that her conduct was central to the merits of the Application, which is largely concerned with allegations of differential treatment in respect of investigation of alleged wrongdoing in employment and employment discipline. While the personal respondent was clearly involved in the investigation and discipline, most of the alleged actions and omissions involve others and are clearly the responsibility of the corporate respondent. The applicant does not claim any specific remedy that only the personal respondent could deliver. Nor does the applicant claim that removing the personal respondent would cause prejudice to him. The corporate respondent also indicates that the personal respondent "has and will continue to participate in the defence" in respect of the Application. Were this not the case, it is still possible to ensure the attendance and participation of the personal respondent, via either a summons to the personal respondent issued by the applicant, or by an order of the Tribunal under s. 1.7
10Finally, I see no difficulty in the circumstances of this case that might arise in respect of corporate liability for all allegations that might be proven at a hearing.
11Section 46.3 (1) of the Code is a statutory deeming provision that makes it clear that "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". This deeming provision applies for the purposes all Code provisions "except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1)".
12The applicant has specifically alleged harassment in his Application, which in the circumstances implicates subsection 5 (2). If the applicant established in a hearing that harassment had occurred, and wished to establish liability on the part of the corporate respondent as well as on the part of the individual who harassed him, he would have to convince the Tribunal of the applicability of corporate liability in law and in the circumstances of the individual case (see for example Ratneiya v. Daniel & Krumeh, 2009 HRTO 1824, Hughes v. 1308581 Ontario, 2009 HRTO 341, S.H. v. M[...] Painting, 2009 HRTO 595, Harriott v. National Money Mart, 2010 HRTO 353).
13In this case, the corporate respondent has stated that it "accepts vicarious liability for the acts complained of" and asserts that "at all times material to the Application", the personal respondent "was acting in the course of her employment".
14For the above reasons, the Request to remove the personal respondent is granted, and the style of cause has been amended accordingly.
15I am not seized of this matter.
Dated at Toronto, this 24th day of October, 2011.
"signed by"
Judith Keene
Vice-chair