HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jaculine Medley

Applicant

-and-

First Intelligence Corp as Brendan Wood Int.,

Ajay Walia, Brendan Wood, Erik Hansen, Jordan Novak,

Nora Turkevics and Stewart Borden

Respondents

INTERIM DECISION

Adjudicator: David Muir

Decision Date: May 28, 2012

Citation: 2012 HRTO 1055

Indexed as: Medley v. First Intelligence Corp

WRITTEN SUBMISSIONS

Jaculine Medley, Applicant

Self-represented

Viktorial Mirtchevsy, Respondent

Self-represented

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 race, disability, family status, sex, gender identity, reprisal and association with a member of a protected group. This Interim Decision deals with a Request for Order During Proceeding (Request) filed by one of the individual respondents, Viktoria Mirtchevsky, seeking to be removed from the Application.

2In the Application the applicant makes a number of general allegations of mistreatment by management staff of the respondent. The allegation as it relates to Ms. Mirtchevsky is that this individual made a complaint about the applicant to management of the corporate respondent which complaint then formed part of the basis for the applicant’s dismissal from employment.

3Rule 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 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.

The 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.

4The respondent submits that at the time of the material events she and the applicant were both employees of the corporate respondent. The respondent states that she was an intern and in some sense subordinate to the applicant and in no position to influence her working conditions. The respondent also states that the applicant’s only allegation concerning her is that she provided a written complaint about the applicant to management which complaint, amongst others, was allegedly used by the corporate respondent to justify the termination of the applicant’s employment. The respondent claims to have had no knowledge of the use to which her complaint might be put.

5The applicant submits that the respondent made a written complaint about the applicant at the request of management and that this complaint formed part of the basis for the applicant’s termination. The applicant also contends that the respondent wrote the complaint to get even with the applicant and by her actions became an active participant in a reprisal against the applicant. The applicant states that a person commits a violation of the Code if they participate in an act of reprisal even if they do not know that that the person plans to engage in a reprisal.

6In responding to the Persaud factors above the applicant states that the Corporate respondent has not accepted responsibility for the actions of this respondent. The applicant states that the respondent is responsible and liable for her participation in the reprisal. Second the applicant states that there is no suggestion that the respondent was acting in the course of her employment. The applicant also states that the corporate respondent is not able to respond to any potential remedial order made against the individual respondent because they have not come forward to assume responsibility for her conduct. The applicant also states that there are compelling reasons to continue the proceeding against the individual respondent, although the applicant does not state what those reasons are. Finally the applicant states that the removal of the individual respondent would cause her prejudice and that it is necessary to the fair just and expeditious adjudication of this case. The applicant states that the role of this individual respondent is central to the case.

7I agree with the individual respondent’s submissions. In my view, considering all the circumstances, it is not necessary to involve this individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application. I disagree with the applicant that this individual is central to the issues in dispute in this case. As indicated previously the only allegation made concerning this individual is that she made a complaint to management about the applicant at management’s request. I disagree with the applicant’s contention that the individual respondent can be found to have reprised against her by this act, even though she did not know that the corporate respondent was allegedly intending to reprise against the applicant. In order to prove reprisal an applicant must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. This is different than the approach to alleged acts of discrimination where intention is not a necessary element in establishing a violation. In order to establish a reprisal the applicant must prove that action was taken with an intent to punish or retaliate. See Noble v. York University 2010 HRTO 878.

8I would also observe that the allegation against this individual respondent, as with others of the allegations made by the applicant, makes no clear connection between the alleged act and the grounds of discrimination claimed. Including the allegation of reprisal. The Tribunal has no authority to deal with general claims of unfairness or personal harassment in the workplace unless the allegation is that these actions are based in whole or in part on Code protected grounds. The complaint made by the respondent may have been unfair, or unjustified but there is nothing in the material that indicates that it was informed in any way by the grounds of discrimination claimed by the applicant.

9Having reviewed the Application, the Reply and the submissions made in respect of this particular issue there is no reason to conclude that this individual respondent is anything other than a minor player in the narrative of this dispute and played no role in any of the central issues in this case which largely concerns allegedly inappropriate behavior by senior managers of the corporate respondent and the ensuing dispute when the applicant challenged the behaviour, culminating in her dismissal from employment. Even if the individual respondent’s conduct were found to be in violation of the Code, which seems unlikely given that even on the applicant’s theory of the case her role is confined to the reprisal issue, there can be no serious issue that the act of complaining about the applicant was in the course of the respondent’s employment and in all of the circumstances an act for which the corporate respondent is ultimately responsible whether it has come forward to say so or not. There is also no issue that there is a corporate respondent capable of responding to any remedial order that might be made in this case and although the applicant claimed prejudice she articulated none.

10I am satisfied that it would not be fair, just or expeditious to continue this Application as against this individual respondent. Accordingly she is removed from the Application and the style of case amended accordingly.

11I am not seized of this case.