Jephson v. Whitby (Town), 2012 HRTO 1472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Amy Jephson

Applicant

-and-

The Corporation of the Town of Whitby and Kevin Cochrane

Respondents

-and between-

The Canadian Union of Public Employees and its Local 53

Intervenor

INTERIM DECISION

Adjudicator: David Muir

Date: July 27, 2012

Citation: 2012 HRTO 1472

Indexed as: Jephson v. Whitby (Town)

APPEARANCES

Amy Jephson, Applicant

Self-represented

The Corporation of the Town of Whitby and Kevin Cochrane, Respondent

Stephen Short,

Counsel

Canadian Union Of Public Employees And Its Local 53, Intervenor

Elizabeth Nurse,

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 with respect to employment because of sex and reprisal.

2This Interim Decisions deals with a number of issues raised by the parties in anticipation of a hearing in this case which is scheduled to begin on March 4, 5 and 6, 2013.

REQUEST TO INTERVENE

3The Canadian Union of Public Employees and its Local 53 (CUPE) filed a Request to Intervene (Form 5) with full party status. Neither the applicant or any of the respondents have responded to the Request and so it is unopposed.

4The union is seeking to intervene on the basis that it has an interest in the outcome of the litigation. It represents two bargaining unit of employees in the respondents workplace and represents some of the individuals named in the Application. CUPE takes no position, at this time, on the facts of the case. The union asserts that if the Tribunal finds in favour of the applicant, some of the public interest remedies sought by the applicant could have a considerable impact on the union’s bargaining unit members including seniority rights, policies, procedures and training in the workplace.

5In the circumstances I am satisfied that the union should be granted intervenor status and the style of cause amended accordingly. However the terms of their participation this proceeding will be determined in due course by the Member presiding at the hearing. The Registrar will provide the union with copies of the materials filed by the parties to date. The parties are instructed to copy the union with any subsequent materials in this matter.

APPLICANT’S REQUESTS

6The applicant has filed a Request to add two individual respondents on the basis that she left them off the Application inadvertently. The applicant also seeks an Order requiring the corporate respondent to provide contact information for a number of proposed respondents to allow a copy of the Application be delivered to them. The respondents oppose these Requests and have filed a Request to have Kevin Cochrane removed from the Application.

7Rule 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.

8The applicant alleges that she was subject to a poisoned work environment created by her co-workers repeated and recurring sexualizing discourse, some directed at the applicant and other remarks directed at other women in the presence of the applicant and her co-workers. The applicant also alleges that when she raised the issue with her crew chief, Kevin Cochrane, he did nothing to assist and to some degree seems to have countenanced the behaviours in the applicant’s view. The applicant also alleges that she was subject to differential treatment in how her performance was assessed culminating in her dismissal while on probation.

9The Requests of the parties are denied at this stage.

10As regards the applicant’s Request to add two additional individual respondents, I agree with the respondents that a consideration of the factors set out above in Persaud, does not support their being included in the Application. There is a corporate respondent that accepts liability for any findings of liability that may be made under the Code and is able to respond to most of the remedial requests being made by the applicant. One of the two proposed respondents seems to have played a tangential role in the events described in the Application it does not appear likely that the conduct of complained of in respect of either of them would justify a remedial order against either of them personally. The applicant is seeking an apology from one of the two proposed respondents but as pointed out by the respondent, the fact that an application is seeking an apology from a prospective respondent is not an important factor in this determination. See Lawrence v. Toronto Police Services Board, 2010 HRTO 161. The applicant provided no compelling reason why either of these individuals should be added and I am satisfied that there are none.

11Different considerations apply with respect to the respondent Cochrane. He appears to have been, unlike others identified in the Application, a central figure in the events described by the applicant whether he is alleged to have actively participated in the discriminatory actions of others. The applicant alleges that she raised her concerns with him as she understood she was required to do under the respondent’s anti-discrimination and harassment policy and he failed to respond in an appropriate way. The applicant also alleges that in respect of the assessment of her work which culminated in the applicant’s dismissal as a probationary employee the respondent Cochrane was the only person from whom management would have received any information about her work. Even if he played no formal role in the applicant’s termination as suggested by the respondent, nonetheless, based on the allegations of the applicant he is central to the what is a key issue in the case. It is possible considering the allegations made that an order of some kind might be made against this individual.

DISCLOSURE OF DOCUMENTS

12In the Notice of Confirmation of hearing the Tribunal directed that the parties deliver to each other a list of all arguably relevant documents and provide a copy of same to every other party, excluding any documents for which privilege is claimed. This deadline was suspended by Registrar’s letter dated July 25, 2012.

13The first stage of the parties disclosure obligations under Rule 16.1 are modified as follows:

By August 25, 2012 you must deliver to every other party:

• a list of all arguably relevant documents in the party’s possession. Where privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and

• a copy of each document contained on the list, excluding any documents for which privilege is claimed.

File a Statement of Delivery (Form 23) with the HRTO confirming delivery of the list and documents on the other parties. You do not need to file copies of the documents with the HRTO at this time.

14The remaining disclosure requirements set out in the July 4, 2012 Notice of Confirmation of Hearing remain unchanged and the parties are directed to consult that correspondence.

15I am not seized of this case.