Drost v. Ottawa-Carleton District School Board, 2011 HRTO 2256

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Valerie Drost Applicant

-and-

Ottawa-Carleton District School Board Respondent

A N D B E T W E E N:

Valerie Drost Applicant

-and-

Laura McAlister, Jillian Bell, Elio Lisi, Ottawa-Carleton District School Board Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle Date: December 15, 2011 Citation: 2011 HRTO 2256 Indexed as: Drost v. Ottawa-Carleton District School Board

1The applicant filed two Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination in her employment with the respondents, on the basis of disability. She also alleges reprisal or threat of reprisal. The first of the two Applications was filed on May 7, 2009, and the second was filed on December 6, 2010.

2On May 4, 2011, the respondent employer filed a Request for an Order During Proceedings (RFO) seeking removal of the individual respondents. The respondent employer provided an affidavit from the Interim Director of Education stating that it is the respondent employer’s position that there is no allegation or indication that the named individuals were acting outside the scope of their employment, the respondent employer accepts any deemed or vicarious liability for the actions of the individually named respondents and the respondent employer is fully capable of responding to and rectifying any Code infringement relating to the allegations in the Application, should such an infringement be found.

3The applicant has made no Response to the RFO, either by means of a Form 11 or otherwise, and the time for doing so has passed.

4By way of remedy, in her Application, the applicant indicates that she seeks monetary compensation, a transfer to a different school, removal of a letter from her employee files, an order that the union must provide her with representation in her “quest to seek justice for the harm the employer and its agents have brought to [her]”, and an order that the board be forced to advertise its “no scent” policy and provide evidence of enforcement of that policy.

5On October 28, 2011, the respondent employer filed an RFO, seeking consolidation of the two Applications. The respondent employer states that both Applications deal with the applicant’s allegations that the respondent employer failed to accommodate her environmental sensitivities at work. The respondent further states that both Applications relate to allegations involving the same school. Further, the respondent states that the Applications relate to specific incidents where the applicant alleges that scented products were used and where she alleges that use of the products resulted in an adverse medical reaction. The respondent employer further states that the individually named respondents are all employees of the respondent employer. The respondent employer submits that the Applications raise the same complaint, namely an allegation that the respondent employer and its employees have failed to accommodate the applicant’s medical condition. Finally, the respondent employer notes that three days have been scheduled for a hearing of one of the Applications, and submit that both Applications can be properly heard at that time.

6On November 9, 2011, the applicant wrote to the Tribunal responding to the October 28, 2011 RFO and opposing consolidation of the two Applications. She submitted that consolidation would not be appropriate because there has been a mediation held in only one of the two Applications and she submits that consolidation would “circumvent any possibility of a negotiated settlement”. She also submits that there are two organizational respondents in Application Number 2010-07564-I and only one in Application Number 2009-02212-I and that consolidation “would unnecessarily complicate a fair understanding of the role played by this additional respondent in the second Application”.

DECISION

7For the reasons that follow, I find that it is appropriate to remove the named personal respondents from Application Number 2010-07564-I, and the style of cause is amended accordingly.

8For the reasons that follow, I find that it is appropriate to consolidate the Applications and they are consolidated.

ANALYSIS

Removal of the Personal Respondents from Application Number 2010-07564-I

9Rule 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.

10The 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:

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?

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.

11The corporate respondent, the employer, is alleged to be liable for the same conduct as the individual respondents. By means of its affidavit appended to the May 4, 2011 RFO, the respondent employer has indicated that it takes no issue with its deemed or vicarious liability for the conduct of the individual respondents. With regard to the question of remedy, I set aside the applicant’s request for a Tribunal order that the union be forced to provide her with representation, as pursuant to Drost v. Ottawa-Carleton District School Board 2011 HRTO 1907 (“Drost”) the Ottawa-Carleton Elementary Teachers’ Federation is no longer a party to this Application. With regard to the remainder of the remedies she seeks, in my view, it is the respondent employer and not the personal respondents, who is in the best position to provide the remedies sought by the applicant, should there be a finding of discrimination contrary to the Code. There is no prejudice which would result from the removal of the individual named respondents. The allegations do not describe any compelling reason to continue the proceeding as against the personal respondents.

12In my view, considering all the circumstances, it is not necessary to involve the individual named respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

13The respondents’ request to remove Laura McAlister, Jillian Bell and Elio Lisi as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.

Consolidation

14According to Rule 1.7(d) of the Tribunal’s Rules of Procedure, the Tribunal may consolidate or hear Applications together “in order to provide for the fair, just and expeditious resolution of any matter before it”.

15In Persaud v. Toronto District School Board, 2008 HRTO 26 , the Tribunal adopted the decision in the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result form the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

16Upon review of the Applications, there appears to be significant overlap in the issues of fact and law before the Tribunal and there is a public interest in avoiding a multiplicity of proceedings. There is no evidence that consolidation of the Applications will result in prejudice to any person.

17While the applicant has argued that there are two corporate respondents in the later Application, she appears to have made this submission without regard to the Tribunal’s above-noted October 24, 2011 interim decision in this matter, Drost, which dismissed the Application as against the Ottawa-Carleton Elementary Teachers’ Federation (and also as against Janet Fraser). Further, as found above, the later Application is also dismissed as against the other individual respondents named. As a result, the only respondent in both Applications is the respondent employer.

18While the applicant has also argued that by consolidation, the possibility of a negotiated settlement is “circumvented”, mediation and settlement are voluntary. Should the parties wish to settle these matters, they are entirely free to engage in settlement discussions and nothing in the Tribunal’s consolidation of these matters alters the parties’ right to negotiate a settlement, should they choose to do so.

Orders

19The style of cause of Application Number 2010-07564-I is hereby amended to reflect the removal of the named personal respondents.

20The Tribunal hereby consolidates Application Numbers 2009-02212-I and 2010-07564-I.

21I am not seized.