Kell v. Andruski, 2012 HRTO 207

Human Rights Tribunal of Ontario

BETWEEN:

Vicki Kell Applicant

-and-

Joe Andruski and Paul Coyne Respondents

-and-

Labourers’ International Union of North America, Local 1059 Intervenor

AND BETWEEN:

Vicki Kell Applicant

-and-

Vernon Stoddart Respondent

-and-

Labourers’ International Union of North America, Local 1059 Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend Date: January 27, 2012 Citation: 2012 HRTO 207 Indexed as: Kell v. Andruski

APPEARANCES

Vicki Kell, Applicant ) Self-represented

LIUNA, Local 1059, Intervenor; Paul Coyne and Vernon Stoddart, Respondents ) Lindsay Lawrence, Counsel

Crossby Dewar Inc., Respondent ) Leah Simon, Counsel

Comstock Canada Ltd., Respondent ) Madeleine L. S. Lowenberg, Counsel

1A summary hearing was held to determine whether these Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that they would succeed. The Applications were served on the respondents named above, as well as two corporate respondents, who filed Responses and Requests for Order During Proceeding (Form 10) asking, among other things, that the Applications be dismissed against four of the five respondents originally named.

2Upon review of the files, the Tribunal issued a Case Assessment Direction notifying the parties of the summary hearing.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4The issue that Rule 19A requires me to determine is whether the Applications have no reasonable prospect of success. If a finding is made that the Applications have no reasonable prospect of success, then they are dismissed. In the absence of such a finding, the Applications continue to proceed through the Tribunal’s procedure.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

FACTUAL ALLEGATIONS

Background

6It is important for the purpose of dealing with this Summary Hearing to have an understanding of the alleged facts. While many of these allegations are found in the respective Applications, they were supplemented at the oral hearing concerning this matter. Not surprisingly, the named respondents in these Applications dispute many of the factual allegations. Where the factual matters are not in dispute, I have noted this. For the purposes of this Summary Hearing, it is not necessary or appropriate for me to make findings of fact on the merits of the Applications, although I have made some findings with respect to jurisdictional facts.

7The applicant worked as an occupational nurse for the Bruce A Restart Project at the site of the Bruce Power nuclear facility (“Bruce Power”). At the hearing, she was uncertain who her employer was (this issue is further discussed below), but states she was hired by Bruce Power from an agency by the name of “Brain Hunter.” She was no longer clear from whom her cheques came, but said that her immediate supervisor was a Bruce Power employee.

8The applicant started working at the Bruce Power site in August 2008. Her contract was reportedly for one year, although she expected it would have been extended had it not been for the events that took place. In any event, she provided occupational health nursing services, including performing health assessments and care to those who worked at Bruce Power. The applicant alleges this included, but was not limited to, Bruce Power employees.

9There were a number of independent contractors who worked for Bruce Power. Two of these contractors were Crossby Dewar Inc. (“Crossby Dewar”) and Comstock Canada Ltd. (“Comstock”), both of which provide construction services to Bruce Power, as well as to a number of unrelated facilities across Canada. The applicant alleges she was required to provide nursing services to the employees of Crossby Dewar and Comstock.

The Allegations of Harassment and Reprisal

10The applicant alleges that on April 28, 2009, she was sexually harassed and solicited for sex by Joe Andruski, a labourer with Crossby Dewar. Although the parties disagree about the nature of the interaction between Andruski and the applicant that day, they agree it took place in what is called the “smoke shack.” This appears to be a facility for persons who work at Bruce Power (i.e., not just Bruce Power employees) to smoke during their breaks.

11Andruski is a member of the Labourers’ International Union of North America, Local 1059 (“LIUNA”). The allegations came to the attention of two union stewards at LIUNA, Paul Coyne and Vernon Stoddart. Coyne was Andruski’s union steward at Crossby Dewar, while Stoddart was a union steward at Comstock. Stoddart reportedly took an interest in the matter because he had been personally responsible for getting Andruski into the union.

12The parties agree that Coyne and Stoddart visited the applicant at her office on April 29, 2009, the day after the incident with Andruski. The applicant states that the two men asked her “to drop the charges against Joe [Andruski],” whom they said they represented. In her oral submissions, the applicant indicated that she felt this was part of the ongoing harassment/discrimination in which people minimized the incident between her and Andruski.

13The applicant states that she reported the incident with Andruski to her immediate supervisor at Bruce Power, which resulted in an investigation into her allegations. The ensuing investigation did little to make the applicant feel better. It was apparently jointly conducted by Bruce Power and Crossby Dewar (since the alleged harasser and many of the witnesses were Crossby Dewar employees).

14The applicant alleges she was told she was to be involved, but when she spoke with someone on May 11, 2009 to reinforce her wish to be involved, was told that the investigation was finished. The investigation concluded that no discrimination or harassment had taken place; that the applicant had misinterpreted the meaning of Andruski’s comments to her.

15The applicant commenced a medical leave on May 3, 2009. She states her supervisor urged her to come back to work and said she would not be paid while off. On June 8, 2009, she was laid off.

The Applications

16The applicant filed three Applications concerning the above incidents. The first was against Andruski, Coyne and their employer, Crossby Dewar; the second against Stoddart and his employer, Comstock; and the third was against Bruce Power and a number of employees, including her immediate supervisor and the persons conducting the investigations. The allegations in section 8 of each of the Applications are identical. That is, the applicant did not separate out the allegations vis-à-vis the respective respondents.

17Bruce Power requested that the Application against it be dismissed on the basis that it was a federal undertaking and subject to federal regulation with respect to human rights law. In a Decision dated April 29, 2010 (2010 HRTO 938), the Tribunal dismissed the Application against Bruce Power and its employees on the basis that the Tribunal had no jurisdiction over the named respondents.

18Four of the five named respondents in the remaining two Applications made Requests for Order During Proceeding (“RFOP”) respectively requesting that all or parts of the Applications against them be dismissed. The only respondent on whose behalf a request was not made was Andruski, who was named in Application 2010-03914-I.

19In addition, LIUNA brought a RFOP asking to be added as an intervenor in each of the two Applications (as well as a RFOP to consolidate the two Applications). LIUNA was added as an intervenor in one of the Applications (2010-03924-I). However, in 2010-03914-I, the request was not dealt with because Crossby Dewar brought an RFOP requesting that LIUNA be added as a respondent to the Application.

20Except as noted, the issues raised in the multiple RFOPs remained unresolved as of the date of the Summary Hearing. The applicant failed to file any written responses to the RFOPs.

DECISION AND ANALYSIS

Paul Coyne and Vernon Stoddart

Request to Dismiss

21LIUNA filed a RFOP in Application 2010-03914-I asking to have the allegations against Paul Coyne dismissed or, in the alternative, having him removed as a respondent. It filed a similar RFOP in Application 2010-03924-I with respect to Vernon Stoddart.

22Stoddart and Coyne assert that the applicant has failed to set out a prima facie case against them. The only allegations against them in the Application are as follows:

April 29/09 – Vernon Stoddart and Paul Coyne came together to my office, said they represented Crosby [sic] Dewar & Joe Andruski. Paul and Vernon asked me to drop charges made against Joe Andruski. Vernon Stoddart said he felt responsible, because he got Joe Andruski into the union. Both Paul and Vernon said this was not the first time Joe Andruski had been in trouble because of his “mouth”

23The applicant makes further allegations against Stoddart in her Reply, but these concern his interactions with her spouse, who was also a Bruce Power employee, and on their face do not suggest a violation of her right to be free from discrimination or harassment. Likewise, on their face, the last two of the allegations in her Application – namely that Stoddart felt responsible and that Coyne and Stoddart advised the applicant that Andruski had been in trouble before – are not violations of the Code.

24The question is whether asking the applicant to withdraw her internal complaint to Bruce Power could lead to a finding that Coyne and/or Stoddart violated the Code?

25To some extent the answer to that question may be influenced by the context in which that statement was made. Was there an implied threat in the request? Did the request that the complaint be dropped imply that Stoddart and Coyne felt that complaint was trivial and the applicant was over-reacting to behaviour for which discipline was not warranted? Is it significant that this request was part of what the applicant alleges was a pattern of response to her complaint? Could this be seen as gender discrimination?

26The case law does not currently provide sufficient guidance to answer these questions definitively. Moreover, with respect to the factual issues, the Tribunal will need to hear evidence and make credibility determinations. For this reason, it cannot be said at this stage that there is no reasonable prospect of success and, accordingly, the request to dismiss against Stoddart and Coyne must fail.

Request to Remove

27Both respondents also ask that they be removed as respondents on the basis that their presence is unnecessary. In support of this proposition, they rely on the passage from the Tribunal’s Decision in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, which states:

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.

28The applicant takes the position that Coyne and Stoddart came to her office on behalf of Andruski (as his union representatives) and as representatives of their respective companies, Crossby Dewar and Comstock. Both companies deny this, as do Coyne and Stoddart. Submissions made on their behalf make it clear that Coyne and Stoddart were there in their capacity as union stewards for LIUNA.

29The applicant was unable to point to any evidence she might call to demonstrate that Coyne and Stoddart were acting as representatives for their respective companies. In her Application, she alleges that they stated they were there on behalf of Crossby Dewar, while in her oral submissions she corrected this to say that each identified the company that they worked for. Merely identifying their employers is not evidence that Coyne and Stoddart were emissaries for those companies.

30Further, the applicant’s position in her Application that Coyne and Stoddart were acting as representatives for their respective companies defies logic. Andruski had no connection with Comstock, nor was Comstock in any way implicated in the sexual harassment allegations. Why, then, would it have asked Stoddart to meet with the applicant? With respect to Crossby Dewar, it was involved in Bruce Power’s investigation, and had no reason to send Andruski’s union steward to engage with the applicant. In the absence of any evidence suggesting a contrary state of affairs, the applicant has no reasonable prospect of success in proving a link between the Code allegations against these respondents in respect of their meeting with the applicant on April 29, 2009 and the corporate respondents, Comstock and Crossby Dewar.

31However, the above conclusion also means that Coyne and Stoddart’s argument that there are corporate respondents who might be deemed or vicariously liable for their conduct must fail. Accordingly, their requests to be removed as individual respondents to the respective Applications are dismissed.

Comstock and Crossby Dewar

32As noted above, the allegations concerning Coyne and Stoddart do not implicate their employers and the companies are not properly named on that basis.

33In their submissions, both Comstock and Crossby Dewar argue that they were not the applicant’s employer and cannot be responsible for the response to the complaint (which the applicant alleges was discriminatory) or the termination of her contract of employment (which the applicant alleges was reprisal for having enforced her rights under the Code). The applicant makes no such specific allegations against them in her Applications, but rather focuses on the alleged failings of Bruce Power employees.

34It would appear that on the face of the Applications the applicant was not alleging that either Crossby Dewar or Comstock was her employer, although this may not have been apparent to them since they were not aware that the applicant simply reproduced her allegations against Bruce Power in the two Applications in which they were named.

35Despite the fact that she did not appear to consider them her former employers at the time she filed her Applications, the applicant would not make this concession in her oral submissions at the Summary Hearing. Instead, the applicant stated at the summary hearing that it was not clear which entity employed her. In support of the proposition that Crossby Dewar or Comstock may have employed her, the applicant said she provided occupational health nursing services to their employees. The applicant did not state that either Crossby Dewar or Comstock paid her for her nursing services, rather the applicant claimed to not know which entity paid her salary.

36The Tribunal takes a purposive and functional approach for determining whether there is an employment relationship: See Szabo v. Poley, 2007 HRTO 37 at para. 16. As pointed out by the two companies, the fact that the applicant provided nursing services to their employees alone does not make an employment relationship. Indeed, all other indicia of an employment relationship point to her employer being Bruce Power. Specifically, it was Bruce Power employees to whom she reported, and who directed the applicant’s work. Moreover, it was a Bruce Power employee who advised her that her employment contract was terminated.

37The applicant speculated in oral submissions that maybe Crossby Dewar and Comstock were indirectly responsible for her termination because they did not want a “problem” at Bruce Power. However, when asked, she was unable to point to any evidence that this had happened, repeating only that it was “possible.” The applicant has no reasonable prospect of success of proving that either Crossby Dewar or Comstock was her employer or, in any way, controlled her employment. Accordingly, there is no reasonable prospect that the allegation that Crossby Dewar or Comstock reprised against the applicant contrary to the Code in the termination of her employment would succeed.

38The only other possible basis for maintaining Crossby Dewar as a respondent in Application 2010-03914-I is as the employer of Andruski. Under s. 46.3(1) of the Code, anything done in the course of his or her employment by an employee of a corporation is deemed to be the act of that corporation. However, the interaction between the applicant and Andruski did not take place in the course of Andruski’s employment. This is significant because he is not a co-worker of the applicant, but employed by a separate company, and the only basis for making his employer liable would be if he were acting in the course of employment at the time of the incident.

39In summary, there are no allegations in the Applications that would link either Crossby Dewar or Comstock with a violation of the Code or otherwise result in them being deemed liable. That being the case, the Applications are dismissed against them.

Dismissal of Allegations

40Most of the allegations in the Applications relate to conduct of Bruce Power employees. Given that the Application against Bruce Power has been dismissed, it is not appropriate to maintain those allegations. Accordingly, all allegations in Application 2010-03914-I and Application 2010-03924-I are dismissed except for the allegations in relation to Andruski’s conduct on April 28, 2009 and Stoddart and Coyne’s conduct on April 29, 2009.

Intervenor

41LIUNA is granted intervenor status in Application 2010-03914-I. Although Crossby Dewar brought a Request to have them added as a respondent, Crossby Dewar no longer has standing to bring a Request as it has been removed as party to these proceedings.

Consolidation

42The Request to consolidate was made by LIUNA, which is not just the intervenor, but which also is providing representation to the three remaining respondents. The applicant has not formally taken a position on consolidation. Given the clear overlap in the remaining respondents and allegations, and the fact that the applicant and intervenor are the same in both Applications, it is fair, just and expeditious to consolidate Application 2010-03914-I and Application 2010-03924-I.

FURTHER SUBMISSIONS

43There is one issue that the parties have not raised, but which has become more apparent in light of the above rulings. When the Tribunal dismissed Application 2010-03928-I against Bruce Power, it did so on the basis that Bruce Power was a federal undertaking and the employment relationship between it and the applicant was federally regulated.

44The only basis for naming the three remaining respondents, who were neither the applicant’s co-workers, nor her employers, is that s. 5 of the Code provides protection to persons “with respect to employment.” If that employment is federally regulated, the question is whether all matters concerning it are properly within the jurisdiction of the Canadian Human Rights Commission.

45The applicant, respondents and intervenor are directed to deliver to each other and the Tribunal written submissions on this point within 28 days of the date of this Interim Decision.

ORDER

46In sum, I have made the following orders and directions:

a. Application 2010-03914-I is dismissed as against the respondent Crossby Dewar Inc.;

b. Application 2010-03924-I is dismissed as against the respondent Comstock Canada Inc.;

c. All allegations in Application 2010-03914-I and Application 2010-03924-I are dismissed except for the allegations in relation to Andruski’s conduct on April 28, 2009 and Stoddart and Coyne’s conduct on April 29, 2009;

d. Application 2010-03914-I and Application 2010-03924-I are consolidated;

e. LIUNA is granted intervenor status is Application 2010-03914-I; and

f. The applicant, respondents and intervenor are directed to deliver to each other and the Tribunal written submissions in respect of the issue identified in paragraphs 43 and 44 of this Interim Decision within 28 days of the date of this Interim Decision.

47I am not seized of this matter.