HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Barbara Kelly
Applicant
-and-
Kirkland & District Hospital
Respondent
INTERIM DECISION
Adjudicator: Judith Keene Date: December 5, 2012 Citation: 2012 HRTO 2278 Indexed as: Kelly v. Kirkland & District Hospital
WRITTEN SUBMISSIONS
Kirkland & District Hospital, Respondent
Nadine Zacks, Counsel
Introduction
1This is an Interim Decision in respect of an Application filed on December 28, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment. Of the grounds of discrimination listed on the application form, the applicant has checked off disability and record of offenses. Next to "record of offenses", the applicant has written "language". This raises an issue that will need clarification before a hearing; see below.
2A mediation has not resulted in a settlement. This Interim Decision deals with prehearing issues.
REQUEST TO REMOVE PERSONAL RESPONDENT
3In their Response, the respondents requested that the Tribunal remove the name of Wayne Stratton, whom the applicant had listed as a personal respondent. The applicant has not filed a Reply to make submissions on this issue.
4The Tribunal's decision in Persaud v. Toronto District School Board, 2008 HRTO 31, suggests a non-exhaustive list of factors to consider 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?
5The respondents note that the Code provides that actions or omissions done in the course of employment by an agent of a corporation are deemed to be acts or omissions done by the corporation, and submit that the actions of the personal respondent were actions taken in the course of his employment, rather than in his personal capacity. The respondents also submit that the applicant has not alleged discrimination on a prohibited ground by the personal respondent directly, nor has she alleged that the personal respondent was acting outside the scope of his employment.
6The respondents also indicate that the personal respondent would be significantly prejudiced in costs associated with defending the Application, as he is now retired from his employment with the corporate respondent. The Respondent indicates that there is no issue with respect to the ability of the corporate respondent to provide the monetary remedy requested by the applicant should an order for such a remedy be issued.
7I agree that the applicant has made no allegations that implicate the personal respondent directly in any alleged breach of the Code. In the circumstances of this case, I agree that the personal respondent should be removed; the style cause will be amended accordingly.
ALLEGATION OF DISCRIMINATION ON THE GROUND OF RECORDED OFFENSES
8The applicant has alleged that the designation of a particular job as French-speaking as discrimination on the basis of language. As noted above, she wrote in "language" against "record of offenses" in her Application. The facts set out in her Application deal in part with language. Nothing in the alleged facts raises any implication that "record of offenses" is at issue.
9Language has been accepted in human rights jurisprudence as an aspect of place of origin and ancestry. Most cases in which language has been considered as an aspect of place of origin involve situations in which lack of facility with English or French, or accent, is made an issue in employment. Adverse differentiation or adverse effect in employment associated with accent or language facility can breach the Code. See for example: Cousens v. Canadian Nurses Assn. (1981), 1981 CanLII 4331 (ON HRT), 2 CHRR D/365 (Ont. Bd.Inq.), Bains v. Ontario Hydro (1982), 1982 CanLII 4877 (ON HRT), 3 CHRR D/1136 (Ont. Bd.Inq.), Iancu v. Simcoe County Board of Education (1983), 1983 CanLII 4720 (ON HRT), 4 CHRR D/1203 (Ont. Bd.Inq.) A. v. Colloredo-Mansfeld (No. 3) (1994), 1994 CanLII 18420 (ON HRT), 23 CHRR D/328 (Ont. Bd.Inq.), Segula v. Ferrante (1995), 1995 CanLII 18168 (ON HRT), 27 CHRR D/412 (Ont. Bd.Inq.) and Espinoza v. Coldmatic Refrigeration of Canada Inc., (1995), 1995 CanLII 18164 (ON HRT), 29 CHRR D/35 (Ont. Bd.Inq.).
10Although she appears to have misnamed the ground of discrimination, the applicant raised the allegation relating to language very clearly from the outset. The respondent dealt with claim relating to language in its Response. I see no prejudice to the respondent in ruling that the Application should be considered amended to add "place of origin" and "ancestry" to the grounds of discrimination listed in the Application, without prejudice to the right of either party to object to this decision within 30 days of the date of this Interim Decision.
ORDER
11The personal respondent is removed from this Application and the style of cause is amended accordingly.
12The Application is amended to add "place of origin" and "ancestry" to the grounds of discrimination listed in the Application. Either party may object to this amendment within 30 days of the date of this Interim Decision.
13I am not seized.
Dated at Toronto, this 5th day of December, 2012.
"Signed by"____________________
Judith Keene
Vice-chair