Ruddick-Scott v. Niagara Health System, 2012 HRTO 1862

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Ruddick-Scott

Applicant

-and-

Niagara Health System, Workplace Safety and Insurance Board, Mike Shewan, Carl Sebasta

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: October 1, 2012

Citation: 2012 HRTO 1862

Indexed as: Ruddick-Scott v. Niagara Health System

APPEARANCES

Jennifer Ruddick-Scott, Applicant

Self-represented

Niagara Health System, Carl Sebasta, Respondents

Glenn Christie, Counsel

Workplace Safety and Insurance Board, Mike Shewan, Respondents

Gurjit Brar, 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 disability.

2By Case Assessment Direction (“CAD”) dated November 9, 2012, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing by teleconference pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The purpose of the Summary Hearing was to determine whether the Application should be dismissed as against the Workplace Safety and Insurance Board (“WSIB”) and Mike Shewan on the basis that there is no reasonable prospect that it will succeed against those respondents. The CAD directed that during the same teleconference, the Tribunal would deal with the respondents Request to remove the individual respondents who are employees of the organizational respondent, Niagara Health System, from the Application.

3The applicant consented to the dismissal of the Application against the WSIB and Mike Shewan and as a result, I have not found it necessary to describe the Summary Hearing process in this decision.

Removal of the Individual Respondents

4The applicant consents to the removal of all individual respondents with the exception of Carl Sebasta.

5The applicant was injured at work and placed on modified duties. She alleges that Mr. Sebasta, who was her manager at the time, was unhappy about having to accommodate her. The narrative of her Application contains a number of allegations against Mr. Sebasta personally, including that he attempted to prevent her from working, needed to be reminded by the Occupational Health Nurse of his duty to accommodate, became angry and frustrated with her, and made inappropriate comments about the possibility that she was “faking her injury”.

6In Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), the Tribunal made the following observations about the naming of individual respondents in applications before the Tribunal at paragraphs 4 and 5:

4Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14 at 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.

5Applying 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.

7In this case there is no issue that the first three factors favour removing Mr. Sebasta as an individual respondent in this matter. However, unlike the facts in Persaud, Mr. Sebasta is not alleged to be acting as an “instrument” of the organizational respondent by simply carrying out a decision of the organization. Mr. Sebasta is alleged to have engaged in personal conduct for which the organizational respondent may be vicarious liable, but which it is not alleged to have endorsed. If an infringement is found, it may be appropriate to make an order against Mr. Sebasta in his personal capacity. Accordingly, I decline to exercise my discretion to remove Mr. Sebasta as an individual respondent to this Application.

Order

8The Application is dismissed as against the WSIB and Mike Shewan;

9The individual respondents other than Mr. Sebasta are removed from the Application;

10The style of cause of future documents filed and issued in relation to this Application will reflect this change. The style of cause of this Interim Decision will not include the names of the individual respondents, other than Mr. Sebasta, who have been removed as respondents to this Application.

11Mediation has been declined. Accordingly, the Application will move on to the next stage in the hearing process.

12I am not seized.