Vonella v. Blake Jarrett and Company, 2011 HRTO 401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elena Vonella

Applicant

-and-

Blake Jarrett and Company

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: February 24, 2011

Citation: 2011 HRTO 401

Indexed as: Vonella v. Blake Jarrett

WRITTEN SUBMISSIONS

Elena Vonella, Applicant ) Katrina Marciniak, Counsel

Blake Jarrett and Company, )

Devin Melanson, Blake Jarrett ) Stephen Shore, Counsel

and Kelly Green, Respondents )

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination in employment because of sex.

2The respondents have filed two Requests for Orders During Proceedings (“Requests”) seeking the removal of a number of respondents as parties to this Application.

3The applicant has consented to the removal of Kelly Green and Head 2 Head. The respondents’ Request to remove Kelly Green and Head 2 Head is granted and the style of cause has been amended accordingly.

4The respondents also seek the removal of Blake Jarrett and Devin Melanson. The applicant objects to this Request.

5For the reasons that follow, the Request to remove Jarrett and Melanson as respondents is granted.

FACTUAL BACKGROUND

6The applicant began working for the corporate respondent in May 2001. While she was employed by the corporate respondent, the applicant was pregnant twice and took two periods of combined pregnancy and parental leaves.

7The applicant states that beginning in October 2006, the respondents began taking away her responsibilities and criticising her performance. She alleges her pregnancy and upcoming leave were factors in the respondents’ behaviour.

8The respondents state that the corporate respondent was restructured in November 2006, shortly before the applicant’s first period of maternity leave. The respondents state that the restructuring was in response to organizational growth. It involved creating the position of Director of Operations, a position senior to that of Operations Manager.

9In December, 2007, upon her return from leave, the applicant was placed into the position of Supply Chain Manager. She reported to the Director of Operations.

10The applicant alleges that she was not assigned any meaningful work in this position. The respondents deny this and allege that the applicant began having performance, attendance, and attitudinal difficulties upon her return from leave. She was disciplined and placed on a performance management plan.

11The corporate respondent states that it suffered a downturn in business during the applicant’s second leave period. It states that it terminated the applicant’s employment on November 23, 2009, because of a shortage of work. The dismissal was effective before the end of the applicant’s second leave.

12The applicant alleges that her pregnancies and subsequent leaves were a factor in the corporate respondent‘s decision to terminate her employment. She also alleges that they were factors in the decisions to reduce her level of responsibility and deny her privileges (such as an office, business cards, and a corporate Costco membership).

13The applicant alleges that her work was unfairly criticized and that she was subjected to heightened scrutiny regarding, among other things, her breaks and hours of work. She further states that one of the corporate respondent’s vice-presidents made derogatory comment to her regarding her pregnancy, asking if she was pregnant or “just fat”.

14The respondents deny all of these allegations.

ANALYSIS

15The Tribunal set out its general approach to the naming of personal respondents in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. It wrote:

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.

16In Persaud v. Toronto District School Board, 2008 HRTO 31, 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?

17The corporate respondent states that Jarrett and Melanson were acting wholly within the normal course of their employment. While the corporate respondent denies the allegations of discrimination, it accepts liability for the actions of the personal respondents should the Tribunal find in favour of the applicant.

18The applicant argues that there are compelling reasons not to remove Jarrett and Melanson and that she would be prejudiced by their removal. She argues that the allegations against these two personal respondents involve harassment and individual conduct for which it would be appropriate to award a remedy specifically against the individual.

19I note that the Application does not include a request for remedy against either Jarrett or Melanson, specifically.

Jarrett

20In her Response to the Request, the applicant elaborates upon the alleged role played by Jarrett in this matter. She argues that his views determined how the corporate respondent’s business was run, that he had a general animus against women with children, and that he was responsible for all of the decisions made in regards to the applicant.

21While the applicant clearly feels that Jarrett had a significant role to play in the incidents that gave rise to this Application, none of the applicant’s submissions or allegations suggest that Jarrett engaged in any conduct that went beyond the normal course of his employment. In essence, the applicant’s arguments for continuing the Application against Jarrett are that he drove the decisions made by the corporate respondent. While that may have been the case, I am not convinced that is an appropriate basis for continuing the Application against him.

Melanson

22The applicant has also provided further details regarding her allegations against Melanson. He allegedly ignored or dismissed the applicant’s request for meetings, stated that she would be penalized for taking time off to care for her child, encouraged the applicant not to return to work following her second maternity leave, and asked her whether she was still pregnant following an ultrasound appointment.

23I have difficulty concluding that these types of allegations warrant continuing the Application against Melanson. The applicant does not appear to relate to conduct that goes beyond the normal course of Melanson’s employment or for which the corporate respondent would not accept liability. While the applicant was clearly offended by Melanson’s alleged conduct, I cannot conclude that there is a sufficient basis for continuing the Application against him.

CONCLUSION

24The Application is dismissed against Jarrett and Melanson and the style of cause is amended accordingly

25I am not seized of this matter.