Bartlett v. Hydro One Networks, 2012 HRTO 212

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tania-Joy Bartlett Applicant

• and -

Hydro One Networks Inc., Stu Smith, Jordan Varley, Kyle Clothier, and Tom Stilling Respondents

• and -

Canadian Union of Skilled Workers Intervenor

INTERIM decision

Adjudicator: Maureen Doyle Date: January 30, 2012 Citation: 2012 HRTO 212 Indexed as: Bartlett v. Hydro One Networks

APPEARANCES / WRITTEN SUBMISSIONS

Tania Joy Bartlett, Applicant ) Ian Fellowes, Counsel Hydro One Networks Inc., Respondent ) Richard Charney, Counsel Kyle Clothier, Stewart Smith, ) Tom Stirling, Personal Respondents ) No submissions Canadian Union of Skilled Workers, ) Intervenor ) Carolyn Hart, Counsel

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 in employment on the basis of sex and reprisal or the threat of reprisal for seeking to enforce Code protected rights.

2The Application was originally filed on March 10, 2010. This Interim Decision addresses the applicant’s Request for an Order during Proceeding (“RFO”) filed November 17, 2011, in which she seeks to amend her Application and she seeks an Order from the Tribunal, pursuant to Rule 3.11 of the Tribunal’s Rules of Procedure, that her identity in all decisions in this matter be anonymized.

3The respondent Hydro One Networks Inc. (“HONI”) opposes the applicant’s RFO.

4On December 16, 2010, the Tribunal issued an Interim Decision in this Application, 2010 HRTO 2502 (the “2010 Decision”), adding the Canadian Union of Skilled Workers (“CUSW”) as an intervenor and dismissing the RFO filed by HONI seeking to have CUSW named as a respondent. It also denied the request by four individual respondents to be removed as parties. This Interim Decision also addresses HONI’s November 28, 2011 Request for Reconsideration of the 2010 Decision refusing to add CUSW as a respondent.

5Both the applicant and the CUSW oppose the Request for Reconsideration.

6This Interim Decision also decides two RFOs filed by HONI seeking to add the president of CUSW, Joe Mulhall, as a personal respondent and for production of documentation including an investigation of an internal union complaint and Minutes of Settlement.

7No party opposed the Request for production of documentation regarding an investigation of an internal union complaint.

8CUSW opposes the RFOs filed by HONI with the exception that they have agreed to provide documentation regarding an investigation of an internal union complaint.

9The applicant opposes the Request to add Mr. Mulhall as a party.

10Rulings with regard to all of these RFOs and the Request for Reconsideration were delivered orally at the hearing into this matter on January 11and 12, 2012. The reasons for those rulings follow.

Amendments to the Application

11Rule 1.7 (c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

12In determining requests to amend applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc. 2009 HRTO 926; and Dunford v. Holiday Ford Sales 2009 HRTO 1563.

13In her Application, the applicant has alleged that the individual respondents and HONI have harassed and discriminated against her at work on the basis of her sex. In her RFO, she seeks to include allegations which post-date the filing of her Application. She submits that the new allegations “do not expand the scope of the Application, but relate either to damages or are post-complaint facts that support and relate to the original allegations”.

14In particular, she alleges that a supervisory employee of HONI emailed several HONI employees on February 7, 2011, and that this email “conveys sexist stereotypes in the workplace and is clearly directed to send a message within the workplace”. The email is attached to the RFO and includes eighteen phrases to replace eighteen other phrases which include blanks, presumably representing foul language. The phrase which the applicant submits violates the Code is as follows:

Number 2

TRY SAYING: She’s an aggressive go-getter.

INSTEAD OF: She’s a f_____ing bit__.

15The applicant states that she put HONI on notice on February 22, 2011 that she reserved to rely on the email in her Application. She submits that it is continuing harassment and intimidation which caused her substantial stress and exacerbated the impact of the earlier alleged harassment and intimidation.

16The applicant also alleges that on August 24, 2010, several employees of HONI, not including the individual respondents, were discussing workplace issues when one employee stated “this deal with Tania needed to go away” and “that little Bitch should stop all the fucking lies about Stu, Kyle, and the rest of the guys”. She submits that this is continuing harassment and intimidation which exacerbated the impact of the earlier alleged harassment and intimidation.

17The applicant further alleges that when she attempted to return to accommodated work on March 10, 2010, HONI failed to provide her with accommodated work in accordance with her medical restrictions. In particular, she alleges that she sought to be moved to a worksite where she would not have to work alongside her alleged harassers. She submits that on April 30, 2010, she presented a Functional Capabilities Form completed by her physician, at HONI’s request, indicating that she should not be required to have contact with her alleged harassers. She submits that a plan was agreed to for return to work which was to remain in place until September 13, 2010, moving her to a different work location. She submits that while it indicated HONI would “endeavour to limit exposure in the workplace to the individuals identified”, it did not guarantee “no contact” and in fact, on June 3, 2010, personal respondent Mr. Smith attended at her workplace. She also submits that on “numerous occasions between August and November 2009, including October 29, 2009 and November 2, 2009”, personal respondent Mr. Smith attended her worksite. Additionally, she submits that on June 21 and 22, 2010, a supervisory employee at HONI requested that she complete paperwork for a transfer to a location where she had already explained she would not work, presumably due to the presence of the alleged harassers. She alleges that she had already indicated to the supervisory employee that she would resign rather than work at the alleged harasser’s location, and that she offered to explain her restriction to the supervisory employee, but that he stated he did not need to know. She also alleges that on June 29 and 30, 2010, the same supervisory employee took steps to relocate her to another site. She indicates that her last day at work was in August 2010. She also alleges that in January, 2011, she made a request of the supervisory employee that HONI provide her with a return to work location “so that she could obtain clearance from her doctor for that location”, but she has received no response.

18Additionally, she alleges that HONI has promoted the individual respondents but has penalized and demoted individuals who supported her.

19The respondent HONI submits that the allegations the applicant seeks to add are untimely and are not particularized. It submits that the Applicant has failed to provide any explanation for the delay in bringing forward these new allegations. It notes that she has been represented by counsel at all material times and there can be no good faith explanation for the delay.

20With particular reference to the allegations about discrimination on the basis of disability, HONI also submits that it is prejudiced by its “inability to reconstruct staffing and travel assignments among its casual trades workforce for work assignments now more than a year old.” Further, it submits it has no knowledge of any union related business members of CUSW may have conducted which may have involved site visits to her worksites.

21Further, it submits that there is “no nexus to the Application as originally plead and are tantamount to an entirely fresh Application”.

22With regard to the alleged August 24, 2010 conversation between coworkers, HONI submits that this allegation is untimely. Again, it notes that the applicant has been represented by counsel at all material times and submits that there has been “no explanation, good faith or otherwise” for raising this allegation against an individual who has previously not been referenced. It submits that this too expands the scope of the Application and necessitates the calling of additional witnesses.

23With regard to the allegations relating to the February 2011 email, HONI submits that as the applicant left the workplace in August 2010, and her narrative of the events “must be considered as request to admit hearsay evidence” and submits that the Tribunal should not admit these allegations on that basis alone. In the alternative, HONI submits that the allegations do not amount to a prima facie breach of the Code and should not be considered. Additionally, HONI submits that the applicant’s assertion that the email is an example of the “conveyance of sexist stereotypes in the workplace” will necessitate an expansion of the proceedings as it “invites a broad sociological inquiry into the circumstances of employment at HONI”.

24With regard to the alleged promotions of the individual respondents and reprisals against the applicant’s supporters, HONI submits that merits of promotion decisions are outside the scope of the proceedings and anyone feeling they had been reprised against could have filed a grievance or an application under the Code. In the alternative, HONI submits that the applicant has failed to particularize these allegations sufficiently and they do not give rise to a prima facie breach of the Code.

25The applicant’s counsel has written to the Tribunal to reply to HONI’s response. The applicant submits that she “should not be punished or penalized for Hydro One’s ongoing failure to meet its obligations” under the Code, and submits that it is not practical or desirable for an applicant to “amend her application with each ongoing breach of the Code.” Rather, she submits that she has followed a “reasonable and practical approach of filing the single Request to Amend a reasonable period before the commencement of the hearing”. She submits that HONI’s alleged ongoing failure to accommodate her represents a “continuing breach of the Code”. She submits that the allegations relate to a series of ongoing breaches and are related events in which there is not a gap of more than one year between consecutive events, and the final event is within one year of the Request to Amend. She disputes that the allegations expand the scope of the Application. With regard to any prejudice to HONI, she submits that she and her counsel have “repeatedly raised the ongoing breaches with Hydro One counsel or management” and any failure to document is a problem of their own creation. Further, she disputes that the new allegations would require hearsay evidence, as she intends to present witnesses who will provide viva voce evidence with respect to her allegations.

Decision Regarding Request to Amend

26The applicant’s Request to amend her Application so as to include the allegations regarding a February 7, 2011 email is granted. I find that this allegation can properly be considered to be of the same character as the allegations contained in the original Application: it is an allegation which is based on a claim of discrimination in employment on the basis of sex. It does not change the nature of the question before the Tribunal and does not expand the scope of the proceedings. While it would have been preferable for the applicant to have raised this allegation at a much earlier stage in these proceedings, it relates to an allegation involving a supervisory employee whose actions also figure in the allegations contained in the Application itself. In these circumstances, I am not satisfied that there is prejudice to HONI which cannot be addressed in the hearing process itself, especially with regard to the question of when HONI will call the supervisory employee to give his testimony. HONI argues that this allegation will be the subject of hearsay evidence and a “sociological inquiry”, but the quality of the evidence and argument which the parties will seek to place before the Tribunal regarding this allegation can be addressed at the appropriate point in the proceedings. It does not preclude amendment of the Application to include this allegation.

27The applicant’s Request to amend her Application so as to include allegations relating to a workplace discussion on August 24, 2010, is denied. While the nature of the allegations is similar to the allegations contained in the Application, the Request to add this allegation was made nearly fifteen months after the date on which the discussion was alleged to have occurred and well after the hearing date had been scheduled. It relates to comments attributed to an individual not previously referenced in this Application. I note too that the applicant has been represented by counsel throughout. While counsel for the applicant has submitted that this was the most practical way to raise the new allegation, I am not satisfied that in these circumstances, given the timing of this Request, allowing the amendment would provide for a fair, just and expeditious resolution of this matter. Accordingly, the Request to amend to add this allegation is denied.

28The allegations of discrimination in employment in regard to the applicant’s attempts to return to work are new, of an entirely different nature from the allegations contained in the Application, and introduce an additional ground of discrimination. They relate to whether the respondent HONI accommodated her disability upon her return to work and would involve additional and different kinds of evidence. I find that they would significantly expand the scope of these proceedings.

29While the applicant argues the allegations relate to a continuing breach of the Code, given the significant extent to which they and the kind of inquiry they would necessitate diverge from the original Application, the timing of this Request to amend in respect of the stage this Application has reached is also of concern. I do not find that permitting this amendment would provide for a fair, just and expeditious resolution of this matter. Accordingly, the Request to amend the Application to add these allegations is denied.

30Though I do not find that the Application should be amended to include these allegations, leading to a potential separate finding of discrimination on the basis of disability, the allegations themselves may have some relevance should the Tribunal be required to make a ruling regarding remedy. Accordingly, the hearing of this matter will be bifurcated. Should a hearing regarding appropriate remedies be necessary following a ruling on the merits, the parties will have the opportunity to make submissions regarding the relevance of these allegations for purposes of determining remedy.

31The applicant also seeks to add allegations regarding promotions given to the personal respondents and penalties and demotions meted out to those co-workers who supported her. I do not find that there are sufficient particulars provided to support granting this aspect of the Request to amend.

Request to Anonymize

32The applicant seeks an Order pursuant to Rule 3.11 of the Tribunal’s Rules of Procedure to anonymize her identity in all decisions in this matter.

33Rule 3.11 states:

The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

34The applicant provides the following reasons to support this Request:

a) The allegations relate to serious allegations of sexual harassment and discrimination.

b) The sensitive and private nature of her medical conditions and the adverse impact publication of same will have on her ongoing treatment

c) The publication of the applicant’s name will further limit her ability to return to employment with Hydro One

d) The applicant has safety concerns due to the ongoing harassment by the individual respondents. Information published with respect to her name or the location of her current residence places her physical and mental security at risk.

35The respondent HONI objects to the anonymization of the applicant’s identity. It submits that she has presented no special circumstances which would justify the extraordinary measure of anonymization and cites Visic v. Elia Associates Professional Corp. 2011 HRTO 1230. It also submits that the applicant has already indicated that she has no intention to return to work at HONI.

36HONI cites C.M. v. York Region District School Board, 2009 HRTO 735 (“C.M.”) and submits that the applicant should not be permitted to advance her allegations from behind a veil of anonymity. It submits that the anonymization the applicant seeks is contrary to the Tribunal’s commitment to a “fair, open and accessible process”.

Decision Regarding Anonymization

37Participation in legal proceedings often leads to the publication of information individuals would prefer to keep private. This interest is weighed against the principles of open justice and freedom of expression. For the reasons which follow, I do not consider it appropriate to anonymize the applicant’s name.

38In C.M., the Tribunal anonymized its decision involving an applicant who was a minor. In considering the issue of anonymization and openness of the Tribunal’s process, it stated:

Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly (sic) parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

39Though the applicant submits that her Request for anonymization should be granted because the Application relates to allegations of sexual harassment and discrimination on the basis of sex, and while the Tribunal has anonymized certain decisions in matters where there are allegations of sexual harassment, not every decision involving such allegations has been anonymized. The mere fact, then, that this Application alleges sexual harassment does not automatically trigger anonymization. It is not evident on the face of the Application that there are special circumstances which weigh against the public interest in openness of the Tribunal’s process.

40The applicant further submits that not anonymizing the decision will have a negative impact on her treatment given the “sensitive and private nature of her medical conditions”. She has not, however, offered any explanation of why this would be the case, nor is it evident on the face of the Application. Further, it is not uncommon that a human rights case may involve some disclosure of personal information, but it is not evident at this point that there are any unique concerns or issues of confidentiality in respect of her medical condition which would justify anonymization and outweigh the public interest in openness in the Tribunal’s proceedings.

41The applicant also submits that the publication of her name will further inhibit her ability to return to work at HONI. In her Application, however, the applicant has noted the paucity of women in her skilled trade at HONI and has even indicated that the use of the personal pronoun “she” in certain documentation relating to an allegation has clearly been a reference to her. In these circumstances, it is difficult to imagine that anonymization, which involves use of her initials, would have the practical effect of giving her anonymity at the workplace. In these circumstances, I do not find that her interest in anonymity can override the public interest in the Tribunal’s proceedings.

42Finally, the applicant submits that anonymization is necessary due to her safety concerns due to ongoing harassment by the individual respondents. The individual respondents are parties to this Application and have the right to be present at the hearing of this matter. Any decisions in this matter will not provide more information than is provided at the hearing and it is difficult, therefore, to imagine how anything in a decision could place her at greater risk than information presented at the hearing. Further, in writing decisions, the Vice-chair can exercise discretion in referencing sensitive evidence.

The Request for Reconsideration

43The Tribunal’s 2010 Decision found as follows:

…The applicant did not choose to resolve issues under the scheme provided for members by the union. She has elected to pursue her Application before the Tribunal and has made no allegations that the union violated her Code protected rights but has, rather, named the employer for whom she has worked since September 2006 and individual respondents, also employed by HONI during the material times.

The union has sought to intervene as it clearly has an interest in the litigation. In the circumstances I am satisfied that the union should be granted intervenor status.

44In its Request for Reconsideration, HONI indicates the following reasons why the Tribunal should reconsider the 2010 Decision:

a. There are new facts or evidence that could potentially be determinative of the case and that could not reasonably been obtained earlier.

b. The decision is in conflict with established case law or Tribunal procedure and the proposed reconsideration involves a matter of general public importance.

c. Other factors exist that outweigh the public interest in the finality of Tribunal decisions.

45In its response to the Request, the intervenor CUSW notes that the Request for Reconsideration is made beyond the 30 day period contemplated by Rule 26 and is therefore untimely, and argues that the grounds for reconsideration cited by the respondent HONI have not been established here.

46Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

47The Tribunal has issued Rules governing such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 last amended March 2010). Most relevant to this Interim Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

26.5.1 A Request for Reconsideration made more than 30 days following the Decision will not be granted unless the Tribunal determines that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

48The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

49As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

50Under Rule 26.1, only “final” decisions qualify for a reconsideration request. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34 (“Sigrist”), the Tribunal determined that even an interim decision may be “final” where it disposes of some or all of the central issues in the application. Without finding that the 2010 Decision disposes of some of the central issues in the Application, even if reconsideration is available here, I do not find that HONI has met the burden of establishing any of the threshold criteria justifying reconsideration. Additionally, I note that there is some question as to the timeliness of the Request for Reconsideration. Even if the Request were to be found to be timely, however, I do not find that reconsideration is warranted.

51As indicated above, the respondent HONI relies on Rule 26 (a), (c) and (d).

52HONI submits that there has been a breach of procedural fairness and a conflict of statutory obligations. It submits that it was not permitted the opportunity to reply to Reply submissions made by CUSW and to address information regarding a “poison pen” letter which only became known to it by virtue of the union’s Reply and by virtue of later production of documents by CUSW and by Smith. In particular, it asserts that documentation establishes that CUSW was aware of individual respondent Smith’s intention to distribute a letter, termed the “poison pen letter”, which forms part of the allegations of discrimination in the Application. It asserts that this is new information and that it indicates that CUSW “could have prevented a primary act now alleged to breach the Code”. The documentation to which it refers is an email from Mr. Smith to the president of CUSW, in which he indicates that he intends to withdraw an internal union complaint he had filed five months earlier, as there had been no progress as yet. In the email, Mr. Smith stated:

I feel compelled to withdraw my complaint and will instead provide my fellow members in the southwest with a copy of the allegations and my documentation showing they were made knowing they were false and with prejudice and malice towards me. It is my hope that by making people aware of what happened to me it will prevent anyone from making the same ill conceived mistakes and accusations and no one else will be put in such a position again.

53Additionally, HONI submits that it was only through the production of documents that it became aware of the fact that the leadership of CUSW directed that internal CUSW investigators be appointed to inquire into issues between the applicant and the individual respondent Smith. With regard to statutory obligations, it submits that the “Labour Relations Act, 1995 prohibits employers from becoming involved in the administration of a trade union and/or its internal investigations”, but that the employer is also subject to the Code under which it has “parallel duties…to prevent harassment and discrimination”. It argues that there is a conflict between the two pieces of legislation and submits that “the public interest demands adjudication of this novel fact scenario”. It submits that “procedural fairness requires that [it] be allowed the opportunity to fully explore on cross-examination the scope and extent” of CUSW’s involvement. It argues that its “timing and response” to the applicant’s allegations was “in part contingent on the actions and/or inactions” of CUSW.

54It also submits that new evidence has come to light in CUSW’s Reply to indicate that the applicant did in fact file a complaint under the union Constitution, contrary to what it had advised the Tribunal, and contrary to the Tribunal’s consequent finding of fact. It states that the documentation now available indicates that the applicant was a party to and signed internal union complaints regarding the “poison pen letter” and related events. It also submits that there was a settlement which resulted and that it is the only party which is not privy to the terms of the settlement.

55The respondent HONI also submitted that certain allegations central to this Application were previously considered in a grievance filed by individual respondent Smith and determined by the Ontario Labour Relations Board (“OLRB”). It cited the November 26, 2010 OLRB decision incorporating the parties’ Agreed Statement of Facts which stated, among other things, “These allegations were investigated by HONI and the Complainant’s union steward”. It alleges that in the grievance arbitration CUSW took the position that several of the allegations now before the Tribunal were “determined to be unfounded” and submits that the union should not now be permitted to resile from that position. The union has indicated that it does not take a position regarding the merits of the Application.

56In its response to the Request for Reconsideration, CUSW notes that on December 21, 2010, HONI’s then-counsel wrote to the Tribunal asking the Tribunal to reverse its decision. On January 10, 2011 CUSW wrote to the Tribunal opposing the Request for Reconsideration but stating that it would not make submissions unless directed to do so by the Tribunal. CUSW noted that the Tribunal did not seek submissions. It also noted that the applicant’s counsel wrote pointing out that HONI had not made its Request for Reconsideration on the form prescribed by the Tribunal. CUSW notes that HONI did not make its Request for Reconsideration until some eleven months later and that its arguments are essentially the same as the ones made by former counsel in her December 21, 2010 letter to the Tribunal. CUSW submits that HONI has not provided a satisfactory explanation for its delay and that there is no basis for the Tribunal to exercise its discretion to consider the untimely Request for Reconsideration. Further, it argues that a change to its status at this late date means that it would require an adjournment in order to allow it to review and reconsider all of its hearing preparations, including its decision not to call witnesses. It submits that this would protract an already lengthy proceeding and that substantial prejudice would result.

57In its submissions, CUSW characterizes the delay in disclosing the applicant’s internal union complaint forms as “inadvertent”. CUSW states that they were in the possession of a previous solicitor and only came to light when the current union solicitor asked the former solicitor to review the union’s production documents for completeness. CUSW also submits that the complaint forms were never processed by the union as the applicant decided to proceed with an Application to this Tribunal instead. In any event, it submits that the complaint forms are “inconsequential and certainly not ‘potentially determinative’ of the question of the union’s status in this Application”.

58With reference to HONI’s reliance upon the OLRB decision in the Smith grievance, the CUSW argues that this cannot be considered a new and potentially determinative fact which could not have been obtained earlier, as HONI was a party to the grievance proceeding and has had the decision since its release. CUSW argues in any event that its defence of the personal respondent Mr. Smith at the grievance proceeding was simply in fulfillment of its statutory duty of fair representation: that it had not condoned a “poison pen letter”. Rather, it submits it had simply argued that the five day suspension imposed by HONI on Mr. Smith was excessive.

59CUSW submits that HONI has not identified any conflict between the OLRB’s December 16, 2010 decision and the Tribunal’s established jurisprudence.

60CUSW submits that there is no prima facie case that it caused or contributed to the acts of discrimination alleged to have been committed by the respondents, and therefore there is no public interest reason for the Tribunal to reconsider its Decision.

61CUSW cited Palacios v. Builders Warehouse Inc., 2010 HRTO 606 (“Palacios”), arguing that it states that the Tribunal will not add a respondent not named by the applicant “unless there is a very strong connection between the acts complained of by the Applicant and the proposed respondent”. It submits that there is no such connection in this case.

62The respondent HONI made a Reply to CUSW’s submissions arguing that there would be no prejudice to the union in adding it as a party at this point, reiterating its position that there are new facts which the union failed to disclose in a timely manner, stating that it had not known until November 23, 2011 that the union would resile from the position it took at the OLRB regarding the merit of the allegations, and reiterating its argument that there is a causal connection between the union’s conduct and the conduct of the personal respondent Smith. Referring to the union’s knowledge of Mr. Smith’s intent to send a letter, HONI argues that the union could have stopped Mr. Smith by telephoning the employer to warn it of Mr. Smith’s intentions and by speaking to Mr. Smith “regarding his conduct and frustrations”. It is HONI’s submission that the union “must be held to account in the same manner as the Individual Respondent, Smith. CUSW’s inaction is entirely inexcusable. It is the central actor in the allegations now before the Tribunal”. HONI cites Palacios and argues that the union caused or contributed to the discrimination and should be named as a respondent. In particular, it relies on the following quote from Palacios at paragraph 10:

This is distinguishable from the situation where, in respect of the very acts of alleged discrimination made against he persons named as respondents, there is a third party who is alleged to have caused or contributed to these same alleged acts of discrimination. In such circumstances this Tribunal has entertained requests by a respondent to add a third party. [emphasis added in HONI submissions].

63HONI argues that as CUSW is paying for the legal representation for the applicant and for the personal respondents, it is litigating “by proxy” and that it “cannot be permitted to conspire with the Applicant to evade organizational culpability by withholding relevant documentation, funding various parties’ litigation while insisting all matters fall at the feet of the employer, HONI”. It reiterates its submission that it did not have an opportunity to make submissions on the “fresh documentation now known to exist and that are currently withheld by CUSW”. Finally, it also argues that it did not get “fair notice” of the fact that the Tribunal was disposing of its Request to add CUSW as a respondent by way of written submissions, and states that this was a basic requirement of procedural fairness.

Reconsideration Decision

64The respondent HONI seeks to rely upon Rule 26.5(a), arguing that there are new facts or evidence that could potentially be determinative of the case and that could not reasonably been obtained earlier. I do not find this to be the case. The applicant has not made any allegation of discrimination by CUSW. The respondent HONI has speculated that CUSW could have altered the course of events by phoning the employer or talking to Mr. Smith, but I do not find that this is new evidence which could potentially be determinative of the question of CUSW’s proper role in this Application. Even if someone at CUSW was aware of the fact that the personal respondent Mr. Smith was frustrated by its process and advised that he intended to “provide…fellow members…with a copy of the allegations” and his “documentation showing they were made knowing they were false and with prejudice and malice towards” him, this would not be evidence which would support a finding that CUSW infringed the applicant’s rights under the Code and would not be evidence which could potentially be determinative of the question of whether CUSW should be added as a respondent to this Application. Further, whether the applicant did or did not file an internal union complaint against the personal respondent Mr. Smith is not evidence which could potentially be determinative of the question of whether CUSW should be added as a respondent. Again, the applicant has made no allegation of discrimination by CUSW, and there is no factual basis upon which it could be concluded that if she filed an internal union complaint it is evidence that CUSW discriminated against her.

65HONI also seeks reconsideration on the grounds that the 2010 Decision is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance. The only jurisprudence which HONI has addressed is Palacios, cited by CUSW in its Response to the Request for Reconsideration. HONI argues that Palacios supports its position that CUSW should be named as a respondent because it alleges the union caused or contributed to discrimination. Palacios does not address allegations where a third party is alleged to have caused or contributed to alleged acts of discrimination. As noted above, I do not find that the fact alleged by HONI, if proven, could lead to a finding that the proposed respondent CUSW has infringed the applicant’s rights under the Code. While the respondent HONI clearly disagrees with the conclusions of the Tribunal, I am satisfied that its submissions on this Request do not establish that the Tribunal’s 2010 Decision conflicts with established jurisprudence.

66The respondent HONI has not indicated how the 2010 Decision is in conflict with Tribunal procedure, and I am not aware of any deviance from Tribunal procedure. I do not find that there has been any conflict with Tribunal procedure satisfying the criteria at Rule 26.5(c). Rule 19.7 and the Tribunal’s Form 10 make it clear that a Request for an Order During Proceedings may be determined in writing. The cover to the Form 10 states:

The Tribunal will determine whether a Request for Order will be heard in writing, in person or electronically… This Request may be heard on the basis of Form 10 alone.

67The respondent HONI also relies upon Rule 26.5.1 and submits that other factors exist which outweigh the public interest in the finality of Tribunal decisions. It argues that there has been a breach of procedural fairness and a conflict of statutory obligations. It argues that it has not had an opportunity to make submissions addressing information and documentation provided by CUSW in its Reply and it argues that it should be allowed “the opportunity to fully explore on cross-examination the scope and extent” of CUSW’s involvement. Even with an opportunity to address the additional documentation and information, as noted above, it is not new evidence which could potentially be determinative of the case, as it does not relate to allegations which could support a finding that CUSW violated the Code. With regard to its arguments that there is a conflict of statutory obligations which requires adjudication, it states that the “Labour Relations Act 1995 prohibits employers from becoming involved in the administration of a trade union and/or its internal investigations” and appears to suggest that this is in conflict with its obligations under the Code “to prevent harassment and discrimination”. I do not find that it has established how its duties and obligations pursuant to the relevant legislation conflict, nor, in any event, has it established how granting the Request to Reconsider the 2010 Decision in this matter would outweigh the public interest in the finality of Tribunal decisions.

68HONI also takes the position that CUSW should not be permitted to decline to take a position on the merits of this Application when, it alleges, it took a position regarding the same allegations at the OLRB. It has not established, however, that the fact that CUSW takes no position on the merits of the Application is a factor which outweighs the public interest in the finality of Tribunal decisions. Further, if HONI advances the allegation that CUSW has changed its position regarding the merits of the Application as “new facts or evidence that could potentially be determinative” of the question of CUSW’s proper status in this Application, I do not find that it satisfies this criterion for reconsideration. While HONI may find it frustrating to learn that CUSW declines to take a position on the allegations, whether CUSW did so at the OLRB does not render its decision not to take a position on the merits of the Application a fact which, if proven, could lead to a finding that it violated the Code in respect of the allegations giving rise to this Application. Similarly, while HONI decries the fact that CUSW is paying for counsel for the applicant and for the individual respondents, this is not a fact which could lead to a finding that CUSW violated the applicant’s rights under the Code, nor is it a factor which outweighs the public interest in the finality of Tribunal decisions.

69In sum, I find that the respondent HONI has not established the existence of any of the criteria in Rule 26 that would lead to reconsideration of the 2010 Decision. The Request is denied.

Request to Add the Union President as a Party

70The Request to add the president of the intervenor union as a party is denied.

71In its RFO, HONI alleges that as directing mind of CUSW, its president “did cause, condone, contribute to, and/or fail to prevent the alleged actions now complained of by the Applicant and for which HONI and his members, the Individual Respondents, are now alleged to be liable”. In particular, HONI alleges that the president had advance notice of one of the personal respondent’s intention to send a “poison pen letter” which forms the basis of one of the applicant’s allegations of discrimination, and he did nothing to prevent the member from sending the letter. In this way, HONI submits, the president of CUSW has condoned or contributed to the actions of the personal respondent, and therefore must be held accountable as a party.

72HONI submits that as the Labour Relations Act 1995, S.O. 1995, c. 1, “prohibits employers from becoming involved in the administration of a trade union and/or its internal investigations”, and the potential vicarious liability of HONI “is expanded to include matters occurring and/or arising from Mulhall’s administration of CUSW and its internal policies”. It submits that it should be allowed to explore on cross-examination the “timing and extent of Mulhall’s involvement in the allegations” and that its “timing and response…to the Applicant’s allegations was in part contingent upon the actions and/or inactions of her workplace representative and bargaining agent…as directed by Mulhall”.

73HONI also submits that at proceedings before the OLRB with regard to a grievance which touched upon the “poison pen letter”, the union took a position that several allegations were “‘determined to be unfounded’” and that the evidence of Mr. Mulhall “as the directing mind of CUSW is necessary to full and fair adjudication of this conclusion”.

74HONI also submits that evidence provided after December 6, 2010 submissions by CUSW indicates that though the union stated that the applicant had not filed a complaint under the CUSW constitution, she did in fact file internal union complaints. HONI submits that Mr. Mulhall was privy to those complaints and that it was at his behest that CUSW “failed to provide a full or accurate representation of events to the Tribunal in the December 6, 2010 submission”.

75HONI cited Sandhu v. Royal Group Inc., 2009 HRTO 1765 (“Sandhu”), at paragraph 7:

The Tribunal has held that it may exercise its discretion to add a party when the alleged facts, if proven, could lead to a finding that the proposed respondent infringed the applicant’s rights under the Code, when the proposed respondent would not suffer real and substantial prejudice if added as a party to the proceeding, and when it would be fair, in all the circumstances to add the proposed respondents: Smyth v. Toronto Police Services Board, 2009 HRTO 1513 [emphasis added in HONI’s submissions]

76HONI also relied on Santo and Claman v. Toronto Police Services Board, 2008 HRTO 56, in support of its position that the fundamental question for the Tribunal in exercising its discretion is whether it is appropriate to add a party in a given case.

77The CUSW notes that HONI had previously unsuccessfully attempted to have CUSW named as a respondent and that this RFO is “an attempt to indirectly achieve a result that it has not been able to achieve directly, i.e. to expose CUSW to potential liability arising out of this Complaint”. CUSW submits that the only way HONI may challenge the 2010 Interim Decision is to seek reconsideration of that decision. It notes that HONI has sought such reconsideration.

78CUSW cites the Tribunal’s decisions in Sigrist, above, and Winter v. Arnprior (Town), 2009 HRTO 713, in support of its submission that the unnecessary naming of personal respondents is to be discouraged where “there is no issue as the ability of a corporate respondent to respond or appropriately remedy an alleged Code infringement”. It also submits that if HONI is successful in its Request for Reconsideration and CUSW is named as a respondent, Mr. Mulhall should not be personally named, as CUSW is “directly liable at common law for the actions or negligent actions of its officers and employees”. It submits that if the Tribunal maintains its decision not to name CUSW as a respondent, Mr. Mulhall should not be added as a party, as he was “at all material times acting in his capacity as an officer of CUSW”.

79CUSW also relies on paragraph 10 in Palacios, above, to say that it is only appropriate to add a third party “who is alleged to have caused or contributed to these same alleged acts of discrimination”.

80CUSW submitted that in Sandhu there was a “strong causal connection” between the alleged discrimination and the proposed new respondent, but that in Palacios, the Tribunal had declined to add the applicant’s union as a respondent as there was no connection between the allegations and the union’s conduct.

81CUSW submitted that there is no prima facie case against CUSW or Mr. Mulhall that they “caused or contributed to the acts of discrimination alleged to have been committed”.

82With regard to the question of the position CUSW took at the OLRB, it submits that it grieved the measure of discipline meted out by the employer to one of the personal respondents, and that it had not definitively rejected all of the applicant’s allegations. Rather, it submitted that a local steward and the employer had investigated and had not found them to have merit. It notes that the OLRB grievance matter took place after the union had gone on record with the Tribunal as not taking a position on the merits of the allegations in this Application.

83The applicant also submitted that HONI is seeking to get around the 2010 Decision. The applicant noted that she had not named Mr. Mulhall as a respondent, nor had she made any allegations against him, and she submitted that the Application “could not support a finding that Joe Mulhall violated the Code”.

84The applicant relied upon Palacios to say that she has carriage of the Application and Mr. Mulhall should not be added as a party against her wishes.

85HONI wrote submissions in reply to the applicant’s submissions and to the union’s submissions.

86In responding to the applicant’s submissions, it submitted that if it is fair to add Mr. Mulhall as a party, and the Tribunal may do so even in the absence of the applicant’s consent. It submitted that if Mr. Mulhall is not added as a party, “the Tribunal and HONI will be deprived of necessary and relevant evidence which directly correlates with the potential liability of HONI”. It reiterated its position as articulated in its RFO. It submitted that as the union is paying legal fees for the applicant and for the personal respondents, Mr. Mulhall has “de facto control over all parties to the proceeding same and except HONI” and submits that this is “akin to champerty”.

87In responding to the union’s submissions, HONI submits that Mr. Mulhall, as the “directing mind of CUSW”, is paying the legal fees of the applicant and the individual respondents and is therefore “already a de facto participant in the hearing”. It submitted that he should not be permitted to “participate by proxy, shielded from liability”. It reiterated its position that Mr. Mulhall “caused and/or contributed to the alleged discriminatory act”.

88CUSW provided a brief letter in “sur-reply” to HONI’s submissions, stating that Mr. Mulhall is not paying legal fees for the applicant or the personal respondents. It stated that CUSW is paying those legal fees and took strong exception to the suggestion that this is a form of champerty. It stated that CUSW merely pays their fees, while they each instruct their own counsel in the proceeding. Finally, it states that Mr. Mulhall had no involvement with the matter of the grievance presented at the OLRB.

Decision Regarding the Request to Add the Union President as a Party

89I do not find that it would be appropriate to name Joe Mulhall as a respondent to this Application. The Tribunal has ruled that CUSW has an interest in these proceedings as it may be affected by any remedial order made, but has also ruled that CUSW is not properly named as a respondent and consequently there will be no finding of liability made against it. HONI requested reconsideration of that decision and I find that this Request, which includes many of the same arguments it made in seeking reconsideration, is in its essence an attempt to avoid the Tribunal’s ruling regarding CUSW in order to have the union president named as a personal respondent. The applicant has made no allegation of discrimination against Mr. Mulhall.

90Further, in considering the question of naming additional respondents, the Tribunal stated relevant considerations at paragraph 12 of Smyth v. Toronto Police Services Board, 2009 HRTO 1513 (“Smyth”):

…When determining a request to add a respondent, the Tribunal should consider the following three questions:

(1)Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2)If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him as a respondent?

(3)Would it be fair, in all the circumstances, to add the proposed respondent?

91In Smyth, the Tribunal answered the second question and found that there was no compelling reason to include the named individual as a respondent.

92In this Application, it is unnecessary to proceed to the second and third questions, as there are no facts alleged which, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code. See for example Hunter v. Revera Long Term Care, 2010 HRTO 775; Tyrell v. Lake Promenade Apartments, 2010 HRTO 1680; and Lavoie v. Bechard 2011 HRTO 775. Whether or not it would be appropriate to name a respondent over the objection of the applicant, without the possibility of a finding that Mr. Mulhall discriminated against the applicant contrary to the Code, it would be inappropriate to name him as a party and I decline to name him as a respondent to this Application.

Production of Minutes of Settlement

93I decline to order production of the Minutes of Settlement executed in resolution of an internal union complaint.

94At the hearing of this matter, I ordered CUSW to produce to the Tribunal a copy of the Minutes of Settlement for review.

95Having reviewed the document provided, I am satisfied that there is minimal probative value to the document and the information contained therein, and that it does not oust the confidentiality normally given to Minutes of Settlement. I do not find that this document or anything contained in it provides further information which is likely to advance the question before me, and piercing its confidentiality is not warranted. I do not order its production.

ORDER

96The Tribunal makes the following orders:

• The Application is amended to include the applicant’s allegations relating to a February 2011 email.

• This hearing will be bifurcated. The hearing on liability will be decided first and, depending on the outcome, a hearing on remedy will be scheduled.

Dated at Toronto, this 30th day of January, 2012.

”signed by”________________

Maureen Doyle Vice-chair