Unantenne v. The Hospital for Sick Children, 2012 HRTO 311

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nina Unantenne

Applicant

• and-

The Hospital for Sick Children

Respondent

INTERIM decision

Adjudicator: Ian R. Mackenzie

Date: February 13, 2012

Citation: 2012 HRTO 311

Indexed as: Unantenne v. The Hospital for Sick Children

wRITTEN SUBMISSIONS

Nina Unantenne, Applicant ) Self-represented

The Hospital for Sick Children )

Respondent ) Robert W. Weir, 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 race, colour, ancestry, place of origin, citizenship and ethnic origin. The hearing of the Application is scheduled for March 1, 2012.

2The respondents filed a Request for an Order during a Proceeding (“RFOP”) on January 25, 2012 requesting that parts of the Application be struck as untimely and that Dr. Joao Luiz, Pippi Salle and Ms. Christine Van Klaveren be removed as individual respondents.

3For the reasons set out below, the request to remove the individual respondents is granted. The request to strike parts of the Application will be addressed at the commencement of the hearing. The parties should be prepared to proceed on the merits of the Application.

4Dr. Salle and Ms. Van Klaveren were, at the material times, employees of the Hospital for Sick Children. The Hospital acknowledges that at all times they were acting within the course of their duties. The Hospital has assumed liability for the conduct of the two individuals, if the Tribunal finds a violation of the applicant’s rights under the Code. The Hospital submits that there is no issue as to its ability to respond to or remedy the alleged Code infringement. It also submitted that there was no compelling reason to continue the proceedings against the two individuals personally and there was no actual or potential prejudice in removing them as respondents.

5The applicant submitted that the two individual respondents were crucial to her case and made critical human resource management decisions. She submitted that both acted in bad faith and were responsible for the termination of her employment.

6The Tribunal has provided the following non-exhaustive list of factors to assist in the assessment of whether a personal respondent should be removed from an Application (Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5):

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

7In 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.

8It is clear from the Application, the Response and the respondents’ submissions that Dr. Salle and Ms. Van Klaveren were acting in the course of their employment. The corporate respondent has accepted vicarious liability for their actions. The remedies being sought are within the capacity of the corporate respondent to fulfill. There is no allegation of harassment against these two individuals. In addition, the corporate respondent has listed both individual respondents as witnesses at the hearing of the Application.

9I find that it is not necessary to involve Dr. Salle and Ms. Van Klaveren as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

10Accordingly, Dr. Salle and Ms. Van Klaveren will be removed as individual respondents and the style of cause is amended accordingly.

11Some of the allegations in the Application relate to events that occurred more than one year prior to the Application being filed. However, an adjudicator will need to hear further submissions, and perhaps evidence, to determine whether the alleged actions of the respondent are part of a series of events and as such, should be included in the Application. Accordingly, it is not appropriate to consider this issue until the commencement of the hearing. The parties should also be prepared to proceed on the merits of the Application at the hearing.

DECISION

12The Tribunal makes the following orders:

a. Dr. Salle and Ms. Van Klaveren are removed as individual respondents to the Application;

b. the issue of timeliness of some of the allegations raised by the applicant in the Application will be addressed at the commencement of the hearing; and

c. the parties should be prepared to proceed on the merits of the Application at the hearing on March 1, 2012.

13I am not seized.