HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sandra Samuel
Applicant
-and-
Waterloo Regional District School Board
Respondent
INTERIM DECISION
Adjudicator: Judith Keene
Indexed as: Samuel v. Waterloo Regional District School Board
WRITTEN SUBMISSIONS
Sandra Samuel, Applicant ) Self-represented
Waterloo Regional District School Board, ) Michael Weinert, Linda Kiss, Barry Easter, ) David Williamson, Rejean Cantin ) and Tim Wagner, Respondents ) D. Brent Labord, Counsel
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”) on November 24, 2010. The Application alleges discrimination and harassment with respect to employment, on the basis of disability. A previous Interim Decision (2011 HRTO 498) dealt with a Notice of Intent to Defer under section 45 of the Code and Rule 14.2 of its Rules of Procedure. An attempt at mediation did not result in a settlement.
2This Interim Decision deals with two requests on the part of the respondents, one in respect of the removal as parties individuals named as respondents, and another in respect of representatives of the applicant.
Removal of Individuals as Parties
3On May 2, 2011, the Waterloo Regional District School Board (“the corporate respondent”) filed a Request for Order During Proceedings (“Request”). The corporate respondent asks that Michael Weinert, Linda Kiss, Barry Easter, David Williamson, Rejean Cantin and Tim Wagner (“the individual respondents”) be removed as parties to this proceeding.
4Both parties have now filed materials setting out their version of events and their positions. 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.
5Section 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 of all Code provisions “except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1).”
6The applicant has specifically alleged harassment in her 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 her, she 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).
7The applicant has alleged harassment, but the Application appears to use this term for alleged excessive supervision and discipline. The personal respondents were clearly involved in the investigation and discipline. However, the corporate respondent has stated that it accepts vicarious liability, taking the position that the personal respondents “were acting in the course of their employment at all times.”
8The applicant does not claim that removing the personal respondents would cause prejudice to her.
9It is not necessary that the personal respondents be retained as parties to ensure that relevant evidence is heard by the Tribunal. The corporate respondent may call these individuals as witnesses, and, if this does not occur, it is still possible to ensure the attendance and participation of needed witnesses, via either a summons to an individual issued by the applicant, or by an order of the Tribunal under s. 1.7.
10For the above reasons, the Request to remove the personal respondents is granted, and the style of cause has been amended accordingly.
Representatives
11On September 21, 2011, the applicant e-mailed the Registrar, copying the respondents, to indicate that she had retained two named individuals further identified as a Human Rights Advocate and a Human Rights Lawyer. On September 27, 2011, counsel for the respondents e-mailed the Registrar, copying the applicant, to indicate that these individuals had contacted him, confirming the retainer and identifying themselves as “members of the International Federation of Human Rights (FIDH).”
12Counsel for the respondents indicated his understanding that neither of the named representatives are licensed by the Law Society of Upper Canada (LSUC). He cites s. 30(1) 4 of the LSUC’s Bylaw 4, which speaks to representation by not-for-profit organizations.
13The Tribunal’s Policy on Representation before the HRTO (http://www.hrto.ca/hrto/sites/default/files/Resources/RepresentationBeforeTheHRTO.doc.) includes the following:
A party or witness before the Human Rights Tribunal of Ontario (HRTO) may be self-represented or represented by a lawyer or paralegal licensed by the Law Society of Upper Canada (LSUC).
A party or witness may be represented by an unlicensed person if that person falls within a category the LSUC has exempted from its licensing requirements. The current exemptions permit an unpaid friend or family member, an employee or volunteer from a trade union, and students, volunteers and employees of Legal Aid clinics, among others, to act as a representative. The LSUC’s website contains a complete list of the approved exemptions.
A person who is not licensed, whose license is suspended or who is not in a exempted category will not be permitted to act as a representative in an HRTO proceeding.
A licensed representative must provide her/his LSUC license number to the HRTO. The HRTO may ask an unlicensed representative to identify the LSUC category to which he or she belongs.
14The Tribunal also has a concern in that one of the named representatives, the “Human Rights Advocate” has the same name as an individual mentioned several times in the Response as a co-worker of the applicant.
15On or before December 9, 2011, the applicant is directed to provide her representatives’ LSUC license numbers to the HRTO. If the representatives are not licensed, the applicant is directed to provide evidence that the resresentatives are exempted from the licensing requirements of s. 26.1(5) of the Law Society Act R.S.O. 1990, c. L.8, as amended. By-Law 4 of the LSUC deals with licensing, and establishes certain exemptions to the licensing requirements which include unpaid representation, and representation by employees of a not-for-profit organization, both under specified circumstances and conditions.
16If the applicant establishes that her named representatives are permitted to represent her, the Tribunal may need to issue further direction in respect of issues that might be raised if the individual identified as the “Human Rights Advocate” is in fact the same name as the individual mentioned in the Response as a co-worker of the applicant.
Order and Directions
17The Tribunal orders and directs as follows:
The Request to remove the personal respondents is granted.
On or before December 9, 2011, the applicant is directed to provide her representatives’ LSUC license numbers to the HRTO. If the representatives are not licensed, the applicant is directed to provide evidence that the resresentatives are exempted from the licensing requirements of s. 26.1(5) of the Law Society Act R.S.O. 1990, c. L.8, as amended.
18I am not seized of this matter.
Dated at Toronto, this 2nd day of November, 2011.
“Signed by”
Judith Keene
Vice-chair