Addley v. PGI Fabrene Inc., 2011 HRTO 2007

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paula Frances Iola Addley (Clarke)

Applicant

-and-

PGI Fabrene Inc. and Derek Peters

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: November 7, 2011 Citation: 2011 HRTO 2007 Indexed as: Addley v. PGI Fabrene Inc.

1This Application was filed on May 5, 2010 under, the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges discrimination in employment on the basis of sex, age, disability and reprisal. This Interim Decision is issued in response to the Request for an Order During Proceedings ("RFOP") made by the named respondents (except Derek Peters) to dismiss parts of the Application on the basis that they are untimely and to remove the named personal respondents (except Derek Peters).

2The Application alleges that the applicant was subject to discriminatory treatment while working for PGI Fabrene Inc. (the "corporate respondent") during the period 1990 to 2010. The Application alleges that from 1990 to 2006 the applicant was repeatedly subject to discrimination on the basis of sex, particularly in reference to her efforts to obtain different jobs with the corporate respondent. The Application alleges that in 2007 the applicant was injured on the job and that the respondent refused to pay her for the one day of job loss. The Applications appears to suggest that this was in reprisal for her earlier efforts to enforce her rights. The Application alleges that during the period from July 3, 2009 to when the applicant's employment with the corporate respondent ended on January 26, 2010, the applicant was discriminated against on the basis of disability. The Application names eleven personal respondents, all employees of the corporate respondent. They are Brenda Vaananen, Chris Haas, Craig Hurst, Garry Furlong, Lise Goldthorpe, Peter Beatty, Rich Ladouceur, Roger Perry, Steve Rickertsen, Stu Hogan and Derek Perry. The corporate respondent and all of the personal respondents except Derek Peters are represented by the same counsel. Derek Peters represents himself and he has filed a separate Response.

3Mr. Peters filed his Response on October 18, 2010. The corporate respondent and the other personal respondents filed their (joint) Response on November 1, 2010. The Response of the corporate respondent and associated personal respondents indicates that these respondents intend to bring an RFOP to narrow the scope of the Application and strike all allegations prior to July 3, 2009 and to remove all of the named personal respondents, except Derek Peters (see para 22 to 30).

4On September 29, 2011 the corporate respondent and associated personal respondents filed their RFOP. Neither the applicant nor Derek Peters have filed responses to this RFOP.

REQUEST TO REMOVE UNTIMELY ALLEGATIONS

The Request for an Order During Proceedings (RFOP)

5The Application was filed on May 5, 2010. The RFOP requests that the Tribunal strike all allegations occurring prior to May 5, 2009 in accordance with the one year time limit for filing applications set out in section 34(1) of the Code. Section 34(1) and (2) of the Code state:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

6The RFOP submits that the applicant cannot proceed with any of the allegations that occurred prior to May 5, 2009, on the basis that these allegations and the allegations that date from after May 5, 2009 do not constitute a "series of incidents" as defined in section 34(1)(b). The RFOP submits that there is a gap of more than one year between the date of incidents of alleged discrimination that are timely and the earlier allegations of discrimination. The RFOP submits that where a gap of more than one year occurs between alleged incidents of discrimination these incidents cannot be said to form a series of incidents under section 34(1)(b). The RFOP states that the Tribunal has so determined in decisions such as Chintaman v. Toronto District School Board, 2009 HRTO 1225.

7The RFOP submits that the nature of the incidents of alleged discrimination prior to May 2009 are distinct from those that occur after May 2009 and as such they cannot be said to form a series of incidents. The RFOP notes that the earlier incidents relate to the applicant's alleged difficulties in progressing in the workplace because of her sex while the later relate to her efforts to return to work from disability leave. The RFOP states that while the allegations based on sex and disability all relate to the applicant's place of work they share no other commonalities.

8The RFOP further submits that the applicant has not shown that the delay in filing her application in relation to the allegations prior to May 2009 has been incurred in good faith which would allow the Tribunal to exercise its discretion to consider these earlier allegations pursuant to section 34(2) of the Code.

9The RFOP submits that the applicant has provided no explanation for why she did not pursue her rights under the Code until 2010 even though she first alleges that she was subject to discriminatory treatment in 1990. The RFOP notes that during the years of her employment with the corporate respondent the applicant repeatedly raised her concerns about the way she was treated in her workplace with the corporate respondent which included involving her union and filing grievances to address a number of these concerns. The RFOP further notes that the Application explicitly states that at the end of 2002 the applicant was of the view that a demotion was as a result of her claiming human rights and that she later filed a human rights grievance that was settled in 2006. The RFOP maintains that the applicant could have pursued a human rights complaint at that time, if she so wished. The RFOP submits that as the applicant has been aware for many years that the facts that form the basis of her allegations could have given rise to a violation of the Code and has provided no reasonable explanation for the delay in filing an Application the Tribunal should decline to find that the delay in filing has been incurred in good faith.

The Applicant's Position

10The applicant has provided no response to this RFOP and the time for doing so has now passed. I also note that in her Reply to the corporate respondent's Response (which clearly indicates why the respondents believe the applicant's pre-May 2009 allegations are untimely) the applicant provides no reply to the corporate respondent's account of events that take place prior to May 2009 (as described in para 31-76 of the Response). The applicant restricts her Reply comments to the account of events that begin in July 2009 (as described in para 77 to 90 of the Response).

Analysis

11Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. Under section 34, the Tribunal has no jurisdiction to deal with a complaint filed more than a year after the incident, or the last incident in a series, unless it is satisfied that the circumstances in subsection 34(2) exist.

12In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, the Tribunal stated that the mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. The Code requires an individual to act with all due diligence, and file their application within one year when they seek to pursue a human rights claim.

13I find that the only incidents of alleged discrimination raised by the applicant in her Application that are timely are those that occur after May 5, 2009 and fall within the required one year timeframe under section 34(1)(a). Earlier alleged incidents of discrimination are not part of a series of incidents that extend past May 5, 2009 which would make them timely under section 34(1)(b). The applicant refers to incidents of alleged sex discrimination in May 2006 and, it appears, one of alleged reprisal in August 2007 which is approximately 23 months before the next alleged incident of discrimination. I accept and agree with the reasoning in Chintaman that "a gap of more than one year between incidents in a series would in most cases interrupt the series" (see para. 11). This is more so the case here, where the incidents prior to May 2009 are different in nature than those within the one year timeframe from filing. The Code requirement is that an individual act with due diligence by filing his or her application within one year of an alleged violation of the Code and the fact that a further alleged incident of discrimination occurs beyond that one year timeframe does not, absent evidence of considerations set out in section 34(2) of the Code, allow one to file an application in relation to these untimely allegations.

14The Tribunal has held that in order to establish that a delay in filing an Application was incurred in good faith under section 34(2) an applicant must provide some reasonable explanation for the delay. See Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424. I have no explanations from the applicant for the delay in filing her Application in relation to the alleged incidents of discrimination from 1990 to 2007. The applicant had the opportunity to do provide an explanation in response to the RFOP and potentially as part of her Reply to the corporate respondent's Response.

15I cannot see, based on the information before me, why the applicant could not have pursued an Application in relation to the events of 1990 to 2007 in a more timely fashion. I would note here that the Tribunal has determined that it is not enough for a party who must establish good faith to merely assert that he or she was ignorant of their rights (see Lutz v. Toronto (City), 2009 HRTO 1137) or that he or she was waiting for another legal proceeding to unfold (see Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670.

16I find that the Application only proceeds in relation to the allegations that relate to events after May 5, 2009, and the allegations that relate to events prior to this are dismissed for delay.

REQUEST TO REMOVE PERSONAL RESPONDENTS

The Request for an Order During Proceedings (RFOP)

17The RFOP submits that the personal respondents (except Derek Peters) should be removed as that at all material time these personal respondents were employees of the corporate respondent and acting in the course of their employment. The RFOP submits that section 46.3 of the Code makes clear that all actions of an employee or an officer of a corporation done in the course of his or her employment are deemed to be actions of the corporation. The RFOP states that the corporate respondent undertakes to assume the liability, if any, for all of the personal respondent's alleged actions except for Derek Peters. The RFOP submits that the Application does not disclose a single allegation against any of the personal respondents which, if proven would give rise to a finding of personal liability for a breach of the Code. The RFOP states that the applicant is not requesting personal remedies against any of the personal respondents. The RFOP submits that there is no prejudice to the applicant if the personal respondents are removed given that there would be no finding of personal liability against the personal respondents and that they may still be called as witnesses.

Analysis

18Rule 1.7(b) of the Tribunal's Rules affirms the Tribunal's power to "add or remove a party". In assessing the respondents' request, I have adopted the principles and considered the key factors for removing personal respondents that were enunciated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31. In Sigrist the Tribunal stated:

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. (para 42)

19In Persaud the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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 [is] 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? (para 5)

20I am satisfied that the personal respondents named in the RFOP should be removed from this proceeding. There is no issue with respect to the corporate respondent deemed or vicarious liability for the conduct of the personal respondents. There is no issue with respect to the corporate respondent's ability to respond to and remedy any alleged violation of the Code. In my view there is no compelling reason for the named personal respondents to remain as parties. The Application does not allege that the named personal respondents were acting outside the course of their employment or conducted themselves in a manner that it would be appropriate to potentially award remedies specifically against them. Finally, in my view, there is no basis to conclude that there would be any prejudice caused to the applicant as a result of removing the personal respondents. Accordingly, I order Brenda Vaananen, Chris Haas, Craig Hurst, Garry Furlong, Lise Goldthorpe, Peter Beatty, Rich Ladouceur, Roger Perry, Steve Rickertsen and Stu Hogan be removed as respondents.

21I make no ruling on whether Derek Peters should be removed as a personal respondent given I have, to date, no request to do so.

ORDER

1. The Application proceeds only in reference to allegations of discrimination that occurred after May 2009.

2. Brenda Vaananen, Chris Haas, Craig Hurst, Garry Furlong, Lise Goldthorpe, Peter Beatty, Rich Ladouceur, Roger Perry, Steve Rickertsen and Stu Hogan are removed as personal respondents and the style of cause is amended accordingly.