Paterno v. St. Leonard’s Community Services London and Region, 2012 HRTO 1052

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Frank Paterno

Applicant

-and-

St. Leonard’s Community Services London and Region

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Decision Date: May 28, 2012

Citation: 2012 HRTO 1052

Indexed as: Paterno v. St. Leonard’s Community Services London and Region

WRITTEN SUBMISSIONS

Frank Paterno, Applicant

Self-represented

St. Leonard’s Community Services London and Region, Respondent

Frank Angeletti, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age.

2The purpose of this Interim Decision is to deal with the respondent’s Requests for Order During Proceedings requesting: an Order amending the name of the organizational respondent from St. Leonard’s Society of Canada to St. Leonard’s Community Services London and Region; an Order dismissing the Application for lack of a prima facie case; an Order removing a personal respondent; and, an Order for particulars.

3This Interim Decision will also address the applicant’s Requests for Order During Proceedings requesting: an Order adding a party; an Order amending the Application; and, an Order for production of documents.

Request to amend the name of the organizational respondent

4The respondent requests that the name of the organizational respondent, St. Leonard’s Society of Canada, be changed to correctly identify the organizational respondent as St. Leonard’s Community Services London and Region. According to the organizational respondent, St. Leonard’s Society of Canada is a separate legal entity and that at all relevant times the applicant’s employer was St. Leonard’s Community Services London and Region. The applicant consents to the change of name.

5In these circumstances the request to amend the name of the organizational respondent to St. Leonard’s Community Services London and Region is granted and the style of cause is amended accordingly.

Request to dismiss for no prima facie case

6The organizational respondent provides accommodation for adult males on parole and statutory release. The applicant indicates that he attended a job interview for a Relief Position with the organizational respondent and was subsequently hired for that position. According to the applicant, he then attended an orientation session “to complete the hiring process” after which he was given a shift schedule. The applicant indicates that after completing two shifts he was dismissed. The applicant claims that the organizational respondent “just changed their mind” on hiring him because, as he was allegedly told, he “didn’t fit in”. According to the applicant, there was no mention or evidence of performance concerns. The applicant maintains that he was terminated because of his advanced age. He self-identifies as being 61.

7It is only in very rare cases, in which the facts and issues are very simple and clear, that the Tribunal may dismiss on the ground that an application fails to disclose a breach of the Code, without giving an opportunity to make oral submissions. In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 the Tribunal reiterated that, while the onus is on the applicant to establish a prima facie case of discrimination, the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the respondent may have knowledge of facts or possess evidence of discrimination that is not accessible to the applicant, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. The Tribunal has set out the approach it will take where the matter is at such a preliminary stage that no evidence has been presented:

In such circumstances, the threshold test will be the same, but there will be no evidence before the Tribunal. It will be sufficient if the applicant raises allegations that, if accepted to be true, would be enough to establish a violation of the Code. See: Capocci v. York Catholic District School Board, 2009 HRTO 107, 2009 HRTO 107 at para. 20; Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, 2006 HRTO 22, at paras. 21-22). (above, at para 6)

8In my view, it is not plain and obvious that the Application cannot succeed. The allegation that the applicant was terminated from his employment with the organizational respondent due to his age may amount to a breach of the Code.

9The request to dismiss the Application for no prima facie case is denied.

Request to remove the personal respondent

10The organizational respondent seeks the removal of Heather Callender as a personal respondent. The applicant argues that the personal respondent should remain as a party since she was the Executive Director of the organizational respondent at the time he was terminated from his employment and it was the personal respondent who made the decision to terminate the applicant.

11Pursuant to Rule 1.7 (b) of the Tribunal’s Rules, the Tribunal has the power to add or remove a party. The Tribunal reviewed its approach to the issue of whether an individual is properly named as a personal respondent in Lagana v. Saputo Dairy Products Canada 2010 HRTO 155 at paragraphs 6 – 8:

The question of whether an individual is properly named as a personal respondent in a human rights application has been considered in a number of recent Tribunal decisions including Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31, 2008 HRTO 31).

In Sigrist the Tribunal set out the general approach to this issue, stating as follows (para. 42) :

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.

In Persaud, the Tribunal identified a list of factors to consider when determining whether a personal respondent should be removed (para. 5):

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?

12The organizational respondent submits that a consideration of all the factors referred to in Persuad support the request to remove the personal respondent: the organizational respondent is prepared to accept any potential liability on behalf of the personal respondent; it can respond to and remedy the applicant’s complaints; there is no compelling reason to continue proceedings against the personal respondent; there is no prejudice to the applicant if the personal respondent is removed.

13The applicant submits that if the personal respondent is removed she will avoid accountability and liability for her actions and that this would be prejudicial to him.

14I am satisfied, having considered the factors outlined in Persaud that the personal respondent should be removed. I am satisfied that the first three factors identified in Persaud favour the removal of the personal respondent. In considering the fourth and fifth factors identified in Persaud I accept that the personal respondent had some interaction with the applicant and was involved in the decision to terminate the applicant’s employment. However, there is no suggestion that she acted independently or outside the course of her job responsibilities. Consequently, I am satisfied that she would not be held personally liable for her actions. I do not see any prejudice to the applicant in terms of proceeding with his Application or receiving remedies if the personal respondent was removed from the Application.

15The request to remove Heather Callender as a personal respondent is granted.

Request for particulars

16The organizational respondent submits that “the Application contains no particulars or details sufficient to enable the Respondents to know the case against them”. It is unclear what particulars the organizational respondent is seeking. It would appear, however, that the organizational respondent had sufficient information at its disposal as it was able to provide a fulsome and meaningful Response to the Application.

17In the circumstances, I find that the request for particulars is premature. Once the parties have complied with their disclosure obligations in accordance with the Tribunal’s Riles of Procedure the organizational respondent may file a request for particulars following the disclosure process described by Rules 16 and 17.

18The request for particulars at this stage is denied.

Request to amend the Application

19In considering requests to amend applications under section 34 of the Code, the Tribunal generally examines the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

20The applicant seeks to amend the Application to include allegations of discrimination and harassment on the grounds of sex. He alleges that Erica Vincent, an employee of the organizational respondent advised Heather Callender, the Executive Director for the organizational respondent, that the applicant had been written up at a former workplace several times for his attitude toward female co-workers as well as clients. He claims that this unsubstantiated gossip between two female individuals hurt his reputation and was a factor in his dismissal from his employment with the organizational respondent.

21The organizational respondent submits that the proposed amendments are materially different than the original complaint and will necessitate further evidence. As well the organizational respondent submits that the allegations are made outside the one-year time limit set out in section 34(1) of the Code.

22As for untimeliness issue, section 34(1) applies only to when a person may apply to the Tribunal and not when the person can seek amendments. The Tribunal can, and has, granted amendments after the one year period without requiring the applicant to satisfy the test under section 34(2) of the Code.

23I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of “sex including sexual harassment”. The applicant made the request to amend immediately after receipt of the Response and the filing of his Reply. The Tribunal has not yet scheduled a hearing. The organizational respondent did not identify any prejudice to it if the amendment is granted. The organizational respondent was aware that Erica Vincent told the Executive Director of the applicant’s past work history because the organizational respondent in its Response relied on these allegations in denying the alleged discrimination.

24The request to amend the Application to add the ground of “sex including sexual harassment” and the allegations set out in the request is granted. If the organizational respondent wishes to file an amended Response as a result of this order, it may do so within 30 days of the date of this Interim Decision.

Request to add a party

25The applicant seeks to add Erica Vincent as a personal respondent . The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513 that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Aare there allegations made that could support a finding that the 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?

26In my view, the request to add Erica Vincent as a respondent can be determined on the basis of the first question set out in Smyth. The request contains no allegations that could support a finding that the proposed respondent violated the Code. Moreover, with respect to the second question, Erica Vince is an individual employed by the organizational respondent and the applicant has not expressed any reason let alone a compelling reason to include her as a respondent.

27In the circumstances the request to add Erica Vincent as a respondent is denied.

Request for production

28The applicant seeks extensive production of documents from the organizational respondent on the basis that the information sought is arguably relevant to the issues raised in the Application and Response.

29Rule 16 of the Tribunal’s Rules of Procedure sets out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing which has not yet happened in this case. Indeed, the organizational respondent has expressed an interest in participating in mediation and that will take place first if the applicant has a willingness to participate in mediation. Only if the matter does not settle at mediation will the Application be set down for hearing.

30Under the Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a response or the applicant is not able to ascertain the identity or contact information for a proposed respondent.

31The applicant has not identified any exceptional circumstances in this case. The organizational respondent is, of course, encouraged to share additional documents prior to mediation if such disclosure would facilitate the mediation process, but such disclosure would be voluntary.

32The request for production at this stage is denied as premature.

ORDERS / DIRECTION

33The Tribunal makes the following orders / directions:

1. The organizational respondent’s request to dismiss the Application for no prima facie case is denied.

2. The organizational respondent’s request to remove Heather Callender as a personal respondent is granted. The style of cause is amended accordingly.

3. The organizational respondent’s request for particulars at this stage is denied.

4. The organizational respondent’s request to amend the name of the organizational respondent form St. Leonard’s Society of Canada to St. Leonard’s Community services London and Region is granted. The style of cause is amended accordingly.

5. The applicant’s request to amend the Application to add the ground of sex including sexual harassment and the allegations set out in the request is granted. If the organizational respondent wishes to file an amended Response as a result of this order, it may do so within 30 days of the date of this Interim Decision.

6. The applicant’s request to add Erica Vince as a personal respondent is denied.

7. The applicant’s request for production at this stage is denied.

8. The applicant is directed to specifically indicate to the Registrar within 30 days of the date of this Interim decision whether or not he is amenable to participating in mediation.

34I am not seized.