HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Susan Scotland
Applicant
-and-
Hamilton-Wentworth District School Board
Respondent
-and-
Canadian Union of Public Employees (CUPE) and its Local 4153
Intervenor
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Scotland v. Hamilton-Wentworth District School Board
WRITTEN SUBMISSIONS BY
Susan Scotland, Applicant ) Self-Represented
Hamilton-Wentworth District ) Jane Gooding, Counsel School Board, Respondent )
Canadian Union of Public Employees ) Elizabeth Nurse, Counsel and its Local 4153, Intervenor )
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). There are a number of outstanding Requests for Order During Proceeding filed by the parties and one filed by the Canadian Union of Public Employees and its Local 4153 (the "union") seeking to intervene in these proceedings.
Request by the Union to Intervene
2The union is the certified bargaining agent for the workplace in question. The union seeks to intervene in accordance with Rules 11.2 and 11.3 of the Tribunal's Rules of Procedure. It has an interest in the outcome of the Application, including the remedial orders requested by the applicant.
3The Request to Intervene was delivered to the applicant as well as the organizational and individually-named respondents. The applicant opposes the union's request and in one of her Requests for Order asks that the union "be removed from this case" as she states in her materials that "the union has not acted in her best interest overall". The respondents take no position on the union's intervention request or the applicant's request that the union "be removed".
4A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, a request to intervene by the applicant's bargaining agent is generally granted by the Tribunal. There do not appear to be any exceptional circumstances relevant to the intervention request. The union has been involved in the events leading up to the Application and, although the applicant resigned from her employment, she seeks reinstatement as part of her remedial request, a matter in which the union has an interest.
5In the circumstances I am satisfied that the union should be granted intervenor status. The extent of the union's participation in the hearing will be determined by the presiding Vice-chair or Member.
Addition and Removal of Personal Respondents
6The applicant originally named a personal respondent, Breann Pyke, along with the organizational respondent. She now seeks to add another personal respondent, Nichola Robertson. The organizational respondent opposes the addition of Ms. Robertson and seeks an order removing Ms. Pyke as a named respondent.
7The respondent employer submits in its pleadings, and in the Forms 10 and 11 filed during the course of this proceeding, that the personal respondent Pyke (Human Resource Officer) and the proposed personal respondent Robertson (Return to Work Co-ordinator), both conducted themselves in accordance with their employment obligations and, as such, the respondent employer would be liable in the event that a breach of the Code is established.
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.
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 Tribunal recently held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
Deciding the first question involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud, supra, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
11I agree with the respondents' submissions. In my view, considering all the circumstances, it is not necessary to involve Breann Pyke or Nichola Robertson as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
12The respondents' request to remove Breann Pyke as an individual respondent to the Application is therefore granted. The style of cause shall be amended accordingly. The applicant's request to add Nichola Robertson as a respondent is denied.
Applicant's Request to Amend Application
13The applicant seeks to amend her application to include additional particulars and to indicate that she is no longer working for the respondent employer. The respondent employer consents to the applicant's request and submits its response to the material included in the amendment request.
14Given the consent of the parties and the stage at which this request is being made, the request to amend the Application is granted and the respondent's response is amended to include the materials filed by it on November 21, 2011.
15The applicant may file a Reply within 14 days of the date of this Interim Decision.
Assistance sought
16In her Request for Order, the applicant asks that "the HRTO assist Ms. Scotland with getting her position back or getting compensation given over and above any severance payment to compensate her loss".
17The Tribunal is independent of the parties and derives its mandate from the Code. The Tribunal's mandate requires that Applications brought before it are dealt with fairly, justly and expeditiously. The Tribunal does not provide assistance to one party over another.
18In the event that the statement in paragraph 16 (above) refers to a request by the applicant to amend her Application to include reinstatement and monetary compensation as part of her remedial request, if she establishes a breach of the Code, I note that she has outlined that request more clearly in other materials filed.
Order
19The Canadian Union of Public Employees and its Local 4153 is added to this Application as an intervenor. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter. The extent of the union's participation in the hearing will be determined by the presiding Vice-chair or Member.
20Breann Pyke is removed as an individual respondent and the style of cause amended accordingly.
21The Applicant's request to amend her Application is granted. The Response is also amended to include the materials submitted by the respondent on November 21, 2011. The applicant may file a further Reply within 14 days of the date of this Interim Decision.
Dated at Toronto this 5th day of December, 2011.
"Signed by"
Jay Sengupta
Vice-chair