HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Taramatty Kewallal
Applicant
-and-
The Scarborough Hospital
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Kewallal v.The Scarborough Hospital
WRITTEN SUBMISSIONS
The Scarborough Hospital, John Wright and Carol Shelton, Respondents
Kate Dearden, Counsel
Introduction
1The purpose of this Interim Decision is to address two Requests made by the respondents. The first is to defer considering this Application pending the resolution of grievance proceedings and the second is to remove the two named individual respondents as parties to this Application.
background
2The applicant filed this Application on August 2, 2012, alleging discrimination in employment on the basis of race, colour, ancestry, place of origin, ethnic origin, disability, sex and age contrary to the Human Rights Code, R.S.O. 1990, c. H.10, as amended (the "Code"). Her Application names her employer, The Scarborough Hospital, as well as John Wright and Carol Shelton as respondents. On March 6, 2012, the applicant's union filed two grievances on her behalf, alleging breaches of the collective agreement and the Code. The grievances have been referred to arbitration.
3The respondents' Requests were filed with their Response to the Application. The applicant was directed to file submissions on the Requests as part of her Reply to the Response. She has not done so and the time to reply has now passed.
decision and analysis
Request to Defer
4The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
5The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the fact that the Supreme Court of Canada has affirmed that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42).
6The Supreme Court thus confirmed that human rights tribunals are not the only decision-makers that can decide human rights claims. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal's normal approach is to defer to the other proceeding.
7Having reviewed both the Application and the Response, I am satisfied that the facts and issues that are the subject matter of this Application are the same as those that form the basis of the grievance. As the applicant has not opposed deferral, and there is a significant overlap of facts and issues in both the grievance proceedings and this Application, the Application will be deferred pending completion of the grievance proceedings.
Request to remove individual respondents
8Rule 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.
9The 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.
10In this case the respondents submit that there is no issue with respect to the first three parts of the Persaud test. The Scarborough Hospital has been named, is able to respond to and remedy the alleged infringements, and accepts that it is liable for the acts of the individual respondents, whom it submits were both acting within the scope of their employment. The applicant has not taken issue with the respondents' position.
11In relation to the fourth and fifth parts of the test, the respondents submit that there is no compelling reason to continue against the two individuals and removing them as respondents would not result in any prejudice to the applicant. The applicant has not challenged these submissions either.
12I find that there is no compelling reason to continue the proceeding as against Mr. Wright, and no party would be prejudiced by removing him from the proceeding. He is the Chief Executive Officer of the hospital. Nothing on the face of the Application links his conduct with any ground under the Code, as there is no suggestion that he had any direct or indirect involvement with the applicant in relation to any of the events that form the basis of the Application. The applicant would not be prejudiced by his removal, as doing so would not affect her right to a full hearing on the merits or, if she succeeds at a hearing, to any remedy she has sought.
13Ms Shelton was the applicant's acting manager and had some direct dealings with the applicant. The applicant alleges that as a condition of returning to work this respondent required her to meet with a critical care educator to review a learning plan. The applicant was also required to meet with an occupational health nurse and provide a medical certificate prior to returning to work. The applicant further alleges that this respondent refused to allow her to return unless she could work a twelve-hour shift with no restrictions on her abilities. The applicant alleges that these actions constituted discrimination on the basis of disability.
14While denying that these actions were discriminatory, the corporate respondent indicates that, in the event of a finding to the contrary, it is prepared to accept liability for this conduct. The applicant has not taken issue with that position.
15Although on the face of the Application the applicant has direct dealings with this respondent, these are relatively limited when read in the context of the Application as a whole. In addition, the allegations with respect to her relate directly to her management role with the corporate respondent and decisions made in that capacity. Further, no prejudice has been asserted by the applicant if this respondent is removed. Finally, the remedies sought by the applicant relate solely to the corporate respondent. In these circumstances, I do not see a compelling reason to continue the Application against this respondent.
order
16The Application is deferred until the grievance proceedings are completed. The parties' attention is directed to Rules 14.3 and 14.4 which address how to request reactivation of the Application once the grievance proceeding is concluded.
17The personal respondents are removed as parties to the Application and the style of cause is amended accordingly.
18I am not seized.
Dated at Toronto, this 23rd day of November, 2012.
"Signed by"
Paul Aterman
Vice-chair