Ivanescu v. Credit Valley Hospital, 2011 HRTO 997

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Ivanescu on behalf of Anna Ivanescu

Applicant

-and-

Credit Valley Hospital, The Manufacturers Life Insurance Company, Eugene Rau, Jennifer Peeler and Acclaim Ability Management

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: May 25, 2011

Citation: 2011 HRTO 997

Indexed as: Ivanescu v. Credit Valley Hospital

WRITTEN SUBMISSIONS

Eugene Ivanescu, Applicant ) Self-represented,

Credit Valley Hospital, Respondent ) Kathyrn Bird, Counsel,

1This Interim Decision addresses the applicant’s Request for an Interim Remedy (Form 16). It also deals with two Requests for Order During Proceedings made by Credit Valley Hospital (the “employer”) asking to (1) strike a portion of the Application and (2) remove six of the individual respondents named by the applicant in her Application.

BACKGROUND

2The Application, which was filed on May 28, 2010, alleges discrimination in employment on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

3The applicant is the husband of Anna Ivanescu, who filed a claim on her behalf. In keeping with the terminology used in other such Tribunal decisions, I will refer to Eugene Ivanescu as the applicant and his wife as the claimant: See Kacan v. Ontario Public Service Employees Union, 2010 HRTO 795.

4The claimant was off work for most of 2009 while she was being treated for cancer and recovering from that treatment. A portion of the Application deals with the claimant’s attempt to return to work from January 2010 to May 2010.

5Both the claimant and the applicant (who was actively involved in the discussions with the employer) were unable to agree with her employer concerning the terms of this return to work. There appears to have been a further attempt (or attempts) to return the applicant to work subsequent to the Application being filed, but the applicant remains off work as of the date of this Interim Decision.

6In addition to naming the claimant’s employer, the applicant also named six individual respondents associated with the employer, a disability management company used by the employer and the claimant’s long term disability (LTD) insurer and two of its employees. Both the disability management company and the LTD insurer dispute that the Tribunal has jurisdiction over them with respect to a claim of discrimination in employment, as neither are the claimant’s employer. However, neither respondent has brought a request for order asking the Tribunal to deal with this issue.

DECISION AND ANALYSIS

Interim Remedy

7Rule 23.2 sets out the circumstances in which interim remedies will be granted:

23.2 The Tribunal may grant an interim remedy where it is satisfied that:

a) the Application appears to have merit;

b) the balance of harm or convenience favours granting the interim remedy requested; and,

c) it is just and appropriate in the circumstances to do so.

8In TA v. 60 Montclair, 2009 HRTO 369, the Tribunal states that such remedies are extraordinary and are only granted when the applicant is able to demonstrate that an interim remedy is necessary to ensure a complete, appropriate and effective remedy at the end of a hearing.

9In the instant case, the applicant has failed to articulate why the interim remedy is necessary to ensure a complete, appropriate and effective remedy should he be successful in proving discrimination. He states that the time in which the employer is obliged to hold the claimant’s job open for her will soon expire, and that the claimant could lose her job. However, in its Response to a Request for Interim Remedy (Form 17), the employer states that it has “no intention” of terminating the claimant’s employment.

10The Request for Interim Remedy is dismissed.

Request to Strike

11As noted above, with respect to the allegations against the employer, the Application is primarily concerned with the period in which the terms of her return to work were being unsuccessfully negotiated. However, under the heading “Past Grievances,” the applicant also discusses the 20-year period prior to the claimant’s cancer diagnosis in which he asserts that the claimant was intimidated and harassed by her supervisor, Theresa Liu.

12He specifically particularizes the following incidents:

• The claimant called in sick in late October 2008 because she was not “feeling well,” and Ms Liu called her at home to find out what shift the claimant was scheduled to work even though the information was available on the computer. He also alleges that Ms Liu stopped a shift change between the claimant and one of her co-workers on the basis that she was not certain whether the claimant would be back to work as a result of her calling in sick.
• The claimant asserts that this type of behaviour had been occurring for 20 years, and pointed to another incident in 1989.
• Ms Liu scheduled the claimant to work at Christmas even though she had specifically requested it off and it was not her turn to work that holiday. The date for this incident in the Application is December 2008, but it would appear from the narrative that the applicant is alleging he raised this in his discussion with Human Resources about the October 2008 incident and so may have been referring to December 2007.
• Ms Liu scheduled the claimant to work in May 2008 even though her vacation request for that month had already been approved. Upon her return from vacation, the claimant was scheduled to work a disproportionate number of night shifts.

13The employer challenges this portion of the Application on the basis that it is out of time, and because it raises issues that are outside the jurisdiction of the Tribunal. With respect to the latter, I would note that the Tribunal does not deal with all allegations of unfairness, but rather only those in which discrimination on the basis of a ground enumerated in the Code is raised. The applicant’s recital of allegations suggests a history of friction between the claimant and Ms Liu, but not a history of discrimination (or harassment) on the basis of a Code-related ground. Even the allegation with respect to calling in sick appears to be unrelated to any alleged disability.

14In his response to the employer’s request to strike, the applicant states that the Tribunal’s decision to mail the Application to the respondents was, in effect, a decision that the allegations contained within it are within the Tribunal’s jurisdiction. In fact, the Tribunal is able to determine its jurisdiction at any stage of the process and, contrary to the applicant’s argument, the act of mailing the Application did not mean that the Tribunal accepts that a prima facie breach of the Code had already been established.

15In addition, the employer states that these allegations are out of time. The Tribunal’s power to hear and determine human rights applications is based on the Code. The provision which deals with the time limitations for filing applications is set out in s. 34, which states in part:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

16Pursuant to s. 34 of the Code, where an application is filed more than a year after the incident to which the application relates (or after the last incident in a series of incidents), the Tribunal cannot deal with the application unless it is satisfied that the delay in filing the application was incurred in good faith.

17As stated by the Tribunal in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, “the Code requires an individual to act with all due diligence, and file their application within one year, when they may seek to pursue a human rights claim.” When filing outside this one year time limit, it is incumbent upon the applicant to provide the Tribunal with an explanation as to why s/he did not pursue her/his rights under the Code in a timely manner.

18In this case, the employer states that the 14 month delay between the most recent incident described under the heading “Past Grievances” (October 2008) and the next incident in early January 2010 means that the prior incidents cannot be part of a “series of incidents” as that term is used in the Code. The applicant argues that the only reason for the gap is that his wife was too ill to work for 12 of those 14 months.

19I do not think that the gap in time is as significant as the nature of the incidents themselves. I disagree with the applicant’s assertion that the behaviour of the employer at the time was sufficiently similar to make it “a series of incidents.” Indeed, the tenuous or non-existent connection to the Code with respect to the earlier allegations suggests that that conduct was unrelated to the allegations concerning the applicant’s return to work which, on their face, do allege a prima facie violation of the Code.

20Although given my conclusions concerning the lack of jurisdiction with respect to the “past grievances” makes such an analysis unnecessary, where there is a delay of longer than a year, the applicant bears the burden of demonstrating that the delay was incurred in good faith.

21Given the history of interactions between the claimant and the employer set out by the applicant himself, it would appear that he quickly and assertively addresses issues of concern when they arise, including what he describes as the past grievances. For the period when the claimant was first diagnosed and undergoing treatment, the applicant may have been focussed on the more important matter of his wife’s health, but this only explains a small portion of the delay. The applicant has failed to provide a sufficient explanation for why he did not raise these allegations to the Tribunal earlier on which I can make a finding that the delay was in good faith.

22For the above reasons, the Tribunal is without jurisdiction to deal with the allegations contained in the section entitled “past grievances.” Accordingly, this portion of the Application is dismissed.

Removal of Individual Respondents

23The employer filed a Request for Order During Proceedings (Form 10) in which it asked the Tribunal to order the individual respondents, Norma Cerepnalkovic, Theresa Liu, Derek Zulesky, Carolyn Nancekivell, Dawn Yearwood Weekes (identified in the Application as Dawn Yearwood) and Kay Dryden, removed as parties to this Application. The applicant filed responding submissions, in which he opposed the removal of all but Norma Cerepnalkovic.

24Rule 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 46.3(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.

25The 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.

26The employer has stated that, pursuant to s. 46.3 of the Code, it is liable for the conduct of the six personal respondents (and, in any event, it accepts liability for their actions), and that they were all acting within the scope of their employment with respect to the events set out in the Application. The applicant does not seek any specific remedy against any of the individuals.

27With respect to whether the individual conduct of any of the personal respondents is a central issue, the applicant does not dispute the employer’s position that the individual respondents were each only named once in the Application, with the exception of Ms Liu, the claimant’s supervisor. The only reason Ms Liu is named more than once is that the allegations concerning the claimant’s “past grievances” involved her. Since these allegations have been dismissed, it is not proper to consider them when determining whether Ms Liu’s “individual conduct” is a central issue in this case. Likewise, Ms Nancekivell was named only in relation to an email sent with respect to one of the “past grievances” allegations.

28The simple fact that the individual respondents were apparently involved in a series of acts that the applicant alleges are discriminatory is not sufficient reason to maintain them as parties. The applicant has not identified any prejudice, nor can I see any, that would result if these six individuals were removed.

29Accordingly, I order that Norma Cerepnalkovic, Theresa Liu, Derek Zulesky, Carolyn Nancekivell, Dawn Yearwood Weekes and Kay Dryden be removed as respondents to this proceeding.

30I am not seized of this matter.