HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Juno Stewart
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Children & Youth Services and Ontario Public Service Employees Union
Respondents
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: Stewart v. Ontario (Children and Youth Services)
WRITTEN SUBMISSIONS BY
Juno Stewart, Applicant (Self-represented) Ministry of Children and Youth Services, Respondent (George Parris, Counsel) OPSEU, Interested Party (Eric O’Brien, Counsel)
1This Application was filed on June 17, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) alleging discrimination and reprisal with respect to employment because of race, colour, sex and sexual orientation.
2The Application identifies the applicant’s former employer, the Ministry of Children & Youth Services (“Ministry”), as the institutional respondent, and 16 personal respondents, all of whom are employees of the institutional respondent. One personal respondent was the applicant’s union’s president and the allegations with respect to this individual appear to relate to his conduct in his union capacity as he is referenced in the Application as the union representative.
3The respondents filed a joint Response on October 12, 2010 and, in a cover letter, counsel for the respondents indicated that the Response was being filed by the institutional respondent on behalf of all personal respondents as employees only and not in relation to, or on behalf of, the union or alleged conduct of the union representative. The respondents requested clarification as to why the applicant named all the personal respondents.
4On October 12, 2010, the applicant’s union, Ontario Public Service Employees Union (“OPSEU”), filed a Request to Intervene in this Application.
5The applicant did not reply to the respondents’ request for clarification. On November 1, 2010, the applicant filed a request to add OPSEU as respondent and opposed the union’s Request to Intervene. The applicant alleges that OPSEU should be added as a party because it failed to facilitate his accommodation and took no steps to abate the poisoned work environment.
6Following a Case Assessment Direction dated March 28, 2011, the parties and OPSEU filed submissions with respect to removal of the personal respondents, the Request to Intervene, and the applicant’s request to add OPSEU.
REQUEST TO ADD OPSEU
7Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”.
8In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, set out the factors for consideration with respect to adding a respondent:
(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?
9Based on the Application, it appears that there are facts alleged, which, if assumed (without deciding) to be true, could lead to a finding that OPSEU breached the applicant’s rights under the Code. One personal respondent identified in the Application is the president of the local union, the proposed respondent. The parties’ submissions indicate this individual was part of the dealings between the applicant and the Ministry. The Application narrative included allegations with respect to this union president’s role in meetings to address the applicant’s on-going workplace concerns and an alleged failure by him to protect the applicant when the applicant believed his rights were not being respected.
10The applicant filed his request to add OPSEU approximately five months after filing his Application and within one year from the date of the last alleged incident. OPSEU has been aware of this Application from the outset. The applicant’s request to add OPSEU has been made before any hearing dates or other steps have been scheduled. As such, there does not appear to be any prejudice from the passage of time that would impair its ability to respond to the Application.
11I find that this is an appropriate case to exercise my discretion to add OSPEU as a respondent to this proceeding. I will next consider the issue of removal of all of the personal respondents, including the union representative.
REQUEST TO REMOVE PERSONAL RESPONDENTS
12In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of “non-exhaustive” factors in considering whether a personal respondent should be removed:
Is there 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 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?
13I find that the above-noted factors favour removal of all of the personal respondents. Based on the parties’ and OPSEU’s submissions, it appears that a majority of the personal respondents are members of management and/or human resources, five are co-workers, and one is president of the union local. It appears that all of the allegations with respect to these individuals relate to alleged actions or omissions during the regular course of their employment. Specifically, the applicant alleges that respondent management and OPSEU did not act on his concerns regarding a poisoned work environment and take appropriate steps to protect him. With respect to his co-workers, the applicant alleges that they did not promptly intercede to curtail the supervised youth from engaging in homophobic behaviour and/or implement institutional sanctions against the youth.
14Nothing suggests that the respondent Ministry or OPSEU lack the ability to respond to or remedy the alleged Code infringements. The respondent Ministry and OPSEU are the entities deemed liable for the conduct of its employees and representatives acting in the course of their duties and, therefore, may be found to be in violation of the Code in that regard. I further find that no significant prejudice would result to the applicant if the personal respondents are removed. I find that it is appropriate to remove all of the personal respondents from the proceedings at this time.
15The Tribunal Orders as follows:
The style of cause is amended to add OPSEU and remove all personal respondents;
Within 35 days of the date of this Interim Decision, OPSEU is directed to file its Response, copied to the other parties, and to indicate whether it is amenable to participating in mediation;
Within 14 days of the date of receipt of OPSEU’s Response, the Ministry may file an amended Response and must file correspondence, copied to the other parties, indicating its position with respect to participating in mediation; and
Within 14 days of the date of receipt of the Ministry’s documents, the applicant may file an amended Reply and must file correspondence, copied to the other parties, indicating his position with respect to participating in mediation.
16I am not seized.
Dated at Toronto, this 3rd day of May, 2011.
”signed by”_____________
Ena Chadha
Vice-chair