HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Fidela Amurao
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by
the Minister of Community and Social Services
Respondent ______________________________________________________________________
INTERIM DECISION
Adjudicator: Jay Sengupta
Indexed as: Amurao v. Ontario (Community and Social Services)
WRITTEN SUBMISSIONS
Fidela Amurao, Applicant
Ron Franklin, Counsel
Her Majesty the Queen in Right of Ontario as Represented by the Minister of Community and Social Services,
David Walker, Nancy Liston, Margaret Rappolt and Lois Bain, Respondents
Jennifer Richards, 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 harassment and discrimination in respect of employment because of race, ancestry, ethnic origin, place of origin and association with a person identified by a prohibited ground under the Code. The applicant also alleges reprisal or the threat of reprisal.
2The purpose of this Interim Decision is to consider the applicant’s request to reactivate the Application, her outstanding request to remove a personal respondent and the respondents’ request to remove the remaining three personal respondents.
Reactivation of the Application
3In a previous Interim Decision, 2010 HRTO 2212, the Tribunal deferred consideration of this Application pending the completion of a grievance process before the Grievance Settlement Board (the “GSB”).
4The applicant seeks to reactivate the Application as the underlying grievance has been withdrawn by both her and her union.
5A Decision of Arbitrator Carrier, dated May 23, 2012, confirms that the applicant and her union withdrew the grievance. It also confirms that the respondent employer opposed the request to withdraw, sought to have the withdrawal permitted on a “with prejudice” basis and that it argued that withdrawal at this stage of the process amounted to forum shopping and thereby constituted an abuse of process. Arbitrator Carrier declined to make the orders requested by the respondent employer and confirmed that the grievance had been withdrawn.
6The request to reactivate was filed on July 19, 2012. The request is opposed by the respondents for many of the same reasons outlined in the May 23, 2012 Decision of Arbitrator Carrier.
7Specifically, the respondents argue that the applicant should not be permitted to reactivate this Application because she is “forum shopping”. They say there are sound public policy reasons for refusing her request. The parties to the grievance spent a significant amount of resources in attempting to litigate the very matter before the Tribunal now at the Grievance Settlement Board. Arbitrator Carrier, in one of his procedural rulings, specifically took jurisdiction over the human rights allegations now being advanced at this Tribunal. Despite this clear indication in August 2011, the applicant’s grievance was not withdrawn until May 23, 2012, following procedural rulings requiring her to disclose certain documents (that were not complied with) and others denying further adjournments. In light of the applicant’s conduct, the respondents urge the Tribunal to refuse to reactivate the present Application.
8In considering similar arguments regarding abuse of process in the case of an applicant who also had a matter before the GSB, the Tribunal held as follows in Crowley v. Liquor Control Board of Ontario, 2010 HRTO 2407:
An applicant is not required to file a grievance or participate in a grievance arbitration process as a pre-condition to filing or proceeding with an application before this Tribunal. Rather, under the current Code, an applicant has the option of deciding whether to utilize the grievance arbitration procedure, if available, or to file an application with this Tribunal or do both. Where an applicant decides both to file a grievance and an application to this Tribunal, this will give rise to issues about whether the human rights application should be deferred pending the result of the grievance arbitration procedure and, if an arbitration decision is issued on the merits, whether the arbitration proceeding has appropriately dealt with the substance of the application.
In this case, there was no arbitration decision on the merits of the issues raised by the applicant. While she did file a grievance and pursued it under the steps provided by the collective agreement, it is clear that she did not wish to participate in the arbitration process before the GSB. In my view, this situation is not materially different from a situation where an applicant chooses not to file a grievance at all or decides to withdraw a grievance in favour of proceeding with an application before this Tribunal. Doing so is not, in my view, an abuse of process, but is merely the exercise by an applicant of her right to choose the forum where she wishes her human rights claim to be heard and determined.
I appreciate that it must have been frustrating for the respondents to be required to participate in a grievance arbitration process with which the applicant was not cooperating. Perhaps it would have been preferable if she had simply withdrawn her grievance without prejudice to her ability to proceed with her Applications before this Tribunal. However, in light of the ability of an applicant under the current human rights system to choose the appropriate forum for the determination of human rights issues, I cannot find that the circumstances of this case rise to the level of an abuse of process.
9In Crowley, supra, the applicant was involved in a process before the GSB and sought to reactivate her Tribunal Application upon its conclusion. Although the grievance was dismissed because of the applicant’s failure to participate, the Tribunal ruled the human rights Application could be reactivated and rejected an abuse of process argument advanced by the respondents.
10In the present Application, I note that although various procedural rulings had been made leading up to the withdrawal, a hearing on the merits had not yet commenced.
11More importantly, the decision of Arbitrator Carrier allowing the withdrawal makes it clear that no decision has been rendered on the merits of the human rights issues raised by the applicant at the GSB.
12While it would certainly have been ideal for all parties involved in the GSB matter had the union and applicant withdrawn the grievance earlier in the process, and while I am sympathetic to the respondent employer’s frustration that this did not happen and significant resources have consequently been expended by all involved, I am unable to grant the request made on its behalf and on behalf of the personal respondents. I find that the circumstances of this case do not amount to an abuse of process.
13Accordingly, the applicant’s request that the Application be reactivated is granted.
Removal of Personal Respondents
14Both the applicant and the respondents have submitted requests concerning removal of some of the personally named respondents.
15I also note that in a previous Interim Decision, 2010 HRTO 2212, the Tribunal added “Sylvia d’Uzo” to the style of cause in error. There is no information in the file that would suggest that the applicant intended to name Ms. D’Uzo as a personal respondent. The applicant did not name her as a respondent in the Application documents. She has subsequently submitted an unnecessary request to remove a “Sylvia D’Urzo” as a personal respondent. For the sake of clarity, Ms. D’Urzo is not a party to this Application.
16The applicant filed a Request to remove David Walker as a respondent. There is no indication that the respondents object to the request.
17The request to remove David Walker as a party to this proceeding is granted and the style of cause will be amended accordingly.
18The respondents seek to have Nancy Liston, Margaret Rappolt and Lois Bain, the remaining personally named respondents, removed as parties to this proceeding. The applicant opposes this request.
19Rule 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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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.
20Although the applicant opposes the respondents’ request for removal of respondents Liston, Rappolt and Bain, she has not provided any persuasive arguments to warrant continuing the proceedings against them personally. Although respondent Liston was part of the management structure of the part of the organization where the applicant worked, all allegations of discrimination involving her concern events that took place the workplace and in the context of her employment by the organizational respondent who is also a party to this proceeding. Respondents Rappolt and Bain are senior administrators who were even further removed from personal involvement with the underlying facts that form the basis of this Application.
21In any event, the respondent organization that has also been named accepts vicarious liability for the conduct of the personally named respondents in the event that liability is established, confirms that it is in a position to affect a remedy should one be ordered and indicates that the personally named respondents would be compellable as witnesses if required.
22I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve Nancy Liston, Margaret Rappolt and Lois Bain as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
23The respondents’ request to remove Nancy Liston, Margaret Rappolt and Lois Bain as individual respondents to the Application is, therefore, granted. The style of cause shall be amended accordingly.
ORDER
24The Request to reactivate the Application is granted.
25David Walker, Nancy Liston, Margaret Rappolt and Lois Bain are removed as respondents and the style of cause is amended accordingly.
26As this Application was deferred without a Response being filed, the respondent is directed to file a Response within 35 days of this Interim Decision.
Dated at Toronto, this 5th day of October, 2012.
“Signed by”
Jay Sengupta
Vice-chair