Tran v. YMCA of Greater Toronto, 2012 HRTO 351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Thu Tran Applicant

-and-

YMCA of Greater Toronto Respondent

INTERIM DECISION

Adjudicator: Brian Cook Date: February 17, 2012 Citation: 2012 HRTO 351 Indexed as: Tran v. YMCA of Greater Toronto

APPEARANCES BY / wRITTEN SUBMISSIONS

Thu Tran Applicant ) Osborne Barnwell, Counsel

YMCA of Greater Toronto, Respondent ) Michelle Henry, Counsel

Introduction

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, ancestry and ethnic origin, place of origin, age and reprisal.

2The Application named the YMCA of Greater Toronto and also named Teresa Costa as a personal respondent.

3At the time the Application was filed, the applicant was self-represented. She subsequently retained Mr. Barnwell. He filed a Request for Order During Proceedings asking that the two additional personal respondents be added.

4In a Case Assessment Direction dated September 13, 2011, the Tribunal directed that a summary hearing be held.

5In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

7A finding that the Application will not be dismissed at the summary hearing stage means only that the Tribunal will continue to process the Application. It is not a finding that there is a reasonable prospect of success but only a finding that it is appropriate to continue to process the Application. If the Application is not dismissed, it is in general not appropriate to make any comment or findings about the merits of the allegations.

Background

8The Application states that the applicant came to Canada from Vietnam as a refugee in 1980. She worked for the corporate respondent for 18 years until March 31, 2011 when her employment was terminated. The applicant believes that the termination was tainted by discrimination and was also reprisal for having raised her concerns with management. The respondent asserts that the applicant’s employment was terminated along with a number of other employees due to a significant loss of funding.

9The applicant also alleges that prior to the termination she experienced discrimination and harassment at work. She alleges that this started in 2007 when Saima Malik became her immediate supervisor.

10The respondents submit that the Application is essentially a complaint that the applicant feels that she was unfairly treated by her supervisor. The respondents note that in order to succeed, the applicant would have to show not just that she experienced unfairness but that unfairness was because of a Code-protected ground and specifically race, ancestry and ethnic origin, place of origin, age and/or reprisal, the grounds alleged in the Application.

11The applicant argues that the unfairness must have been because of the grounds alleged because there is no other explanation for why she was treated unfairly. The applicant does also identify some alleged incidents that she alleges demonstrate discrimination on the grounds of race. She alleges that the supervisor gave preferential treatment to two other workers who the applicant says are Chinese. She alleges that she was unduly and improperly criticized in respect of her handling of clients who are of the same racial background as her supervisor. She alleges that there was an incident when she was required to bring Halal food to a work-related event and was as a result not permitted to bring food she wanted to bring. The applicant also alleges that she made complaints to senior management including allegations of discrimination and alleges that the fact she made these complaints was a factor in management’s decisions about who to lay-off in the face of the funding cuts. She also alleges that her job was posted shortly after she left and that it is not true that the posted job was a maternity leave posting.

12As noted, at this stage, it is not appropriate to make any findings with respect to the applicant’s allegations. It is sufficient to say at this point that there are allegations that if proved might establish a connection with the Code. Therefore, I cannot find that there is no reasonable prospect that this aspect of the Application will succeed. The Application is not dismissed and will continue in the Tribunal process.

Personal respondents

13In their Response, the respondents ask that the Tribunal remove Teresa Costa, the personal respondent who was named in the Application. The applicant objected to that request and filed a Request for Order During Proceedings asking that two additional personal respondents be added. These are Saima Malek and Dunja Metikos. The respondents object to the proposed additional personal respondents.

14Rule 1.7(b) provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO14 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.

The 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:

1. Is there 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 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?

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.

15With respect to Ms. Malek, the respondents pointed out that she has not been served with any of the documents in this case although she is of course generally aware of the Application. Mr. Barnwell agreed that Ms. Malek is entitled to notice that the applicant wishes to amend the Application to name her personally as a respondent. Since that has not occurred in this case, the parties agreed that it is not appropriate for the Tribunal to make any ruling respecting whether Ms. Malek should be named as a personal respondent.

16The applicant’s allegations regarding Ms. Costa and Ms. Metikos are that they were involved and aware of the discrimination that the applicant was experiencing. However, on the applicant’s theory of the case, it was Ms. Malek who discriminated against her and who provided incorrect information about her to others. The corporate respondent has confirmed that it will accept full liability in respect of any finding that Ms. Costa or Ms. Metikos did anything contrary to the Code. Given this assertion, it appears to me that there is no compelling reason to continue the Application against Ms. Costa personally or to add Ms. Metikos as a respondent.

Order

17Ms. Costa is removed as a personal respondent and the style of cause has been amended accordingly. It is not necessary to add Ms. Metikos as a personal respondent.

18The Application is not dismissed and will continue in the Tribunal process.