Cunningham v. CUPE 4400, 2011 HRTO 496

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nohemy Cunningham

Applicant

-and-

CUPE 4400, Anna Hutchison, Ann Cowan and Yolanda McLean

Respondents

AND B E T W E E N:

Nohemy Cunningham

Applicant

-and-

Toronto District School Board

Respondent

Interim Decision

Adjudicator: David Muir

Date: March 10, 2011

Citation: 2011 HRTO 496

Indexed as: Cunningham v. CUPE 4400

WRITTEN SUBMISSIONS

Nohemy Cunningham, Applicant ) Self represented

Toronto District School Board, ) Glorie Alfred, Counsel

Kathryn Rumble, Rosemarie ) Hobbins-Coombs, Patricia ) Pild and Dayle Breckon, ) Glorie Alfred, Respondents )

1These Applications were filed on December 31, 2008 under section 53(3) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The Applications are proceeding together.

2This Interim Decision deals primarily with a Request for Order During proceeding filed by the personal respondents in Application T-0918-08 (the respondent Board Application) seeking an order removing Kathryn Rumble, Rosemarie Hobbins-Coombs, Dayle Breckon and Patricia Pild (the personal respondents) as parties to this Application.

3In making this Request, the personal respondents relied on the Tribunal's Decision in Persaud v. Toronto District School Board, 2008 HRTO 31 where the Tribunal outlined the principles relating to the removal of personal respondents as follows:

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 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?

4The personal respondents submit that in consideration of the factors identified in Persaud it would appropriate to grant their Request that they all be removed from the Application.

5The personal respondents state that at all material times they were each employees of the respondent Board which is alleged by the applicant to be liable for the alleged conduct of the individuals. The respondent Board acknowledges that at all material times the personal respondents were acting within the scope of their responsibilities as employees of the respondent Board and there is no dispute or issue relating to the respondent Board's deemed or vicarious liability for the actions they took while carrying out their employment responsibilities. The respondent Board supports the Request to remove the personal respondents.

6The personal respondents also state the applicant is not seeking any remedies from any of them and accordingly there is no issue with respect to the ability of the corporate respondent to satisfy any remedial order which the Tribunal may make.

7The personal respondents state that a review of the allegations makes it clear that the essence of the allegations against each of them relate to applicant’s response or reaction to situations where the personal respondents made directions to the applicant or made requests of the applicant during the normal course of their duties as employees of the respondent Board.

8Finally the personal respondents state that there will be no prejudice to any party if they are removed from the Application.

9The applicant states simply that the personal respondents should not be removed from the Application because “they violated some of my rights”.

10The personal respondents are removed from this Application and the style of cause amended accordingly. Although the applicant characterizes some of the actions of at least one of the personal respondents as harassment, in substance the allegations all relate, as indicated, to the applicant’s perception and reaction to statements made and actions taken by the personal respondents in the course of their employment. It is unlikely that individual remedies would be appropriate in this case and I am satisfied that the respondent Board has accepted that it is both liable for all of the alleged actions of the personal respondents and is able to respond to any remedial order that might be made in the event that liability is established.

11I am seized of this Application.