HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne O’Brien

Applicant

-and-

Toronto Transit Commission and Katherine Castillo

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: August 13, 2012

Citation: 2012 HRTO 1550

Indexed as: O’Brien v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Joanne O’Brien, Applicant

Self-represented

Toronto Transit Commission and Katherine Castillo, Respondents

Marni Tolensky, Counsel

1The applicant filed this Application on August 3, 2011, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and harassment with respect to employment on the basis of disability and reprisal.

2The applicant alleges that the individual respondent, a disability management specialist working for the respondent organization overseeing the applicant’s transitional work program, subjected the applicant to harassment and treated her differently compared to others on modified duties. The applicant alleges that the individual respondent abused her authority by suspending the applicant’s pay, terminating the applicant’s transitional work duties, harassed the applicant while the applicant was on a leave of absence, suggested the applicant take certain medications, made false allegations about the applicant, spoke to the applicant in a degrading fashion and solicited information about the applicant’s work performance.

3The respondents filed a Response on March 5, 2012, denying the allegations of discrimination, harassment and reprisal. The respondents assert that the applicant’s concerns that form the basis of the Application constitute workplace matters and management decisions with respect to handling the applicant’s disability claims. While the applicant objects to the questioning, investigation and decisions regarding her disability claims, the respondents allege that these actions were appropriate and fair steps taken by the individual respondent as the disability management specialist and do not constitute a breach of the Code. In their Response, the respondents request that the Tribunal remove the individual respondent as a party to the Application and that the allegation of reprisal be struck from the Application because the applicant has provided no factual basis to support this claim.

4The applicant filed a Reply on April 2, 2012. The applicant opposes the respondents’ requests to strike the reprisal allegation and to remove the individual respondent.

Request to Remove Individual Respondent

5Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”.

6In 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:

1. Is there 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 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?

7The respondents submit that the Tribunal should remove the individual respondent as a party to this Application because any allegations made against the individual respondent relate to when she was acting in her employment capacity for the organizational respondent and there is no issue with respect to the organizational respondent’s deemed or vicarious liability in that regard. The respondents further argue that there is no remedy sought against the individual respondent. The respondents submit that the individual respondent is no longer employed by the organizational respondent and as such, it would be costly and inconvenient for the individual respondent to attend a full hearing. The respondents argue that there is no compelling reason to continue the proceeding against the individual respondent.

8The applicant submits that it would be unfair to remove the individual respondent from the Application because the individual respondent treated her discriminatorily. The applicant highlights aspects of the alleged interactions with the individual respondent and comments by the individual respondent which she perceives as unfair and harassing. The applicant contends that these actions and statements were outside the scope of the individual respondent’s employment role. For example, the applicant points to alleged remarks by the individual respondent about the applicant’s medication, which the applicant asserts could not be construed part of the individual respondent’s job.

9On my review of the parties’ submissions and the documentary material before me, I am satisfied that, at this stage of the proceedings, the individual respondent should not be removed from the Application. While I appreciate that there is no issue with respect to the first three Persaud factors, I find there is a compelling basis to continue with the individual respondent as a named party in this proceeding. Tribunal jurisprudence has held that it is appropriate to continue the proceeding as against a respondent party where it is the conduct of the individual respondent that is a central issue. See Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155, and Bianca v. Maritime Travel, 2010 HRTO 1077.

10In her narrative, the applicant has made extensive and detailed allegations against the individual respondent. The applicant clearly feels that the individual respondent has a central role in the alleged experiences of discrimination and harassment. It is apparent that the applicant’s concerns pertain to the individual respondent’s alleged hostile behaviour and comments towards her. The applicant also perceives that she was singled out by the individual respondent and subjected to unfair treatment when the applicant objected to the individual respondent’s comments or conduct.

11I appreciate that it is the respondents’ position that the individual respondent, as the disability management specialist, had responsibility to oversee the applicant’s file and investigate any concerns. The question remains whether the alleged comments and conduct of the individual respondent were appropriate administration and management of the applicant’s disability claims, as asserted by the respondents, or differential treatment, harassment and reprisal with respect to a protected Code ground, as alleged by the applicant. In these circumstances, it is my view that it would not be appropriate to remove the individual respondent given the nature and extent of the applicant’s allegations.

Request to Strike Reprisal

12The respondents request that the allegation of reprisal be struck from the Application because the applicant has failed to provide a factual basis to support this claim. The respondents argue that the applicant has not alleged intentional retaliation.

13In opposing the respondents’ request, the applicant highlights aspects of her interactions with the individual respondent which she perceives were retaliatory. The applicant alleges that she was subjected to unfair treatment for taking a leave of absence contrary to the individual respondent’s direction that the applicant should not do so. The applicant alleges she was told that she had to undergo a full physio-assessment despite the individual respondent allegedly knowing a full assessment was contraindicated for the applicant’s condition. The applicant alleges that she refused to undergo the full physio-assessment. The applicant alleges that she was deemed medically non-compliant and that her placement was terminated as reprisal. The applicant appears to suggest these events occurred because she objected to the individual respondent’s conduct and because she filed an internal human rights complaint.

14While I appreciate the basis for the respondents’ request to strike the allegation of reprisal is that they believe there is no factual foundation to establish an intention to reprise, I find that I cannot determine this issue at this stage of the process. Based on the applicant’s submissions, it appears that the applicant alleges to have protested mistreatment and filed an internal complaint. As such, it appears the applicant has raised concerns that could potentially come within section 8 of the Code and, therefore, it appears the allegations are within the jurisdiction of the Tribunal. Consequently, at this stage of the proceeding it would not be appropriate to strike the reprisal allegation in the absence evidence on the merits.

15In sum, I decline to grant the respondents’ request to strike the reprisal claim. This issue can be addressed at the full hearing.

16I am not seized of this matter.

Dated at Toronto, this 13th day of August, 2012.