HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carrie Patrick
Applicant
- and-
The Corporation of Norfolk County and Norview Lodge
Respondents
INTERIM decision
Adjudicator: Brian Cook
Indexed as: Patrick v. Norfolk (County)
APPEARANCES
Carrie Patrick, Applicant ) Sara Erskine, Counsel
The Corporation of Norfolk County, ) Norview Lodge, Kim Jenereaux and ) Ryan Conlin, Counsel Jill Thompson, Respondents )
Service Employees International Union ) Mike Newell, Staff Representative Canada Local 1, Christine Gilbert ) and Mike Newell )
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 disability and reprisal.
2The Application named the applicant’s employer, the SEIU Canada Local 1 (“the union”), which is the union that she is a member of, and individual personal respondents. The personal respondent Mike Newell is the union staff representative. He is not an employee of the employer. The personal respondent Christine Gilbert is an employee of the employer and is also a union shop steward.
3By Case Assessment Direction dated July 21, 2011 the Tribunal directed that a summary hearing would be held to determine if there is no reasonable prospect that the Application could succeed as against the union, Mike Newell and Christine Gilbert. Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, an Application may be dismissed in whole or in part if there is no reasonable prospect that the Application could succeed.
4By Case Assessment Direction dated October 31, 2011, the Tribunal directed that a request that the Tribunal defer further consideration of the Application pending the completion of proceedings before the Workplace Safety and Insurance Board could also be dealt with at the summary hearing.
5In addition the corporate respondents have asked the Tribunal to remove Kim Jenereaux and Jill Thompson as personal respondents.
6The summary hearing was conducted by telephone conference call on February 10, 2012.
7At the hearing, I heard the submissions of the parties on the issues of whether there is no reasonable prospect that the Application could succeed as against the union and on the WSIB deferral request.
8After hearing the parties submissions on the issues and on the basis of the information I heard at the hearing it appeared that the parties were interested in trying to resolve some of the issues raised in the Application, particularly as they relate to the allegations against the employer. I asked the parties if they would like me to explore settlement options with them on the understanding that if a settlement was not possible or if it appeared that settlement discussions would result in undue delay, I would continue to adjudicate the summary hearing issues. This procedure is consistent with Rule 15A of the Tribunal’s Rules of Procedure, which provides in part:
With the agreement of the parties, the Tribunal member hearing an Application may act as mediator. In such circumstances, the mediator may continue to hear the matter as adjudicator.
9The parties all agreed that it was appropriate for me to speak to them separately in order to determine if a settlement was possible without unduly delaying the processing of the Application and that I would continue to act as adjudicator on the summary hearing issues if it appeared that settlement was not possible without unduly delaying the processing of the Application.
10Having had some preliminary discussions with the parties I have determined that I should adjudicate the summary hearing issues. No mediated settlement seems possible at this time without unduly delaying the processing of the Application.
BACKGROUND
11The applicant is an employee of the Corporation of Norfolk County (“Norfolk”) and is employed at Norview Lodge (“Norview”), which is a nursing home operated by Norfolk.
12The applicant fell in the Norview Lodge parking lot on June 23, 2005 and sustained injuries. The Application indicates that the injuries are “permanent and severe” and have resulted in a “chronic pain condition” with symptoms that include regular headaches, and pain in her neck and upper back, worsened with activity. The Application states that the applicant’s sleep is disturbed by pain.
13The applicant filed a claim with the Workplace Safety and Insurance Board (“WSIB”) which was accepted. The applicant received loss of earnings benefits for various periods and has been granted a 30% non-economic loss award.
14The applicant returned to work in August 2008 and was assigned a new position as a Unit Clerk.
15The applicant stopped work in 2011. At the summary hearing she advised that she was medically cleared to return to work in November 2011. She has not returned to work. One of the reasons for this is an ongoing dispute about the applicant’s medical restrictions. The applicant maintains that because of her disability she is unable to work evening or night hours. The employer maintains that the applicant has not sufficiently established why this restriction is necessary. The employer also relies on a finding by the WSIB that any restriction in relation to hours of work does not result from the work-related injury.
16The applicant alleges that there was a written agreement that acknowledged a restriction about hours of work which the employer breached although she does not have a copy of the agreement.
Allegations Against The Union And The Union Personal Respondents
17The applicant’s principle allegations about the union, Mr. Newell and Ms. Gilbert is that the union has not pursued a grievance or has otherwise condoned the employer’s alleged discrimination and harassment.
18Specific allegations include the following:
- At a meeting on or about March 2, 2011, Ms. Gilbert, in her capacity as union steward, told the applicant that the union would not or could not do anything about a change in the applicant’s work hours.
- On or about April 20, 2011 a return to work meeting was held. Mr. Newell was present and told the applicant that the employer could treat the applicant differently because she is disabled.
- Mr. Newel told Ms. Erskine that the union would not file a grievance about the applicant’s allegations of harassment by the employer and co-workers.
- In May 2011 the applicant was told by a co-worker that the co-worker had overheard a conversation involving a union steward (not Ms. Gilbert) state that when the applicant returned to work from her medical leave, the employer was going to terminate the applicant’s employment and that the union was going to “stand behind” the employer and support the termination.
19At the summary hearing, Mr. Newell conceded that the union had not filed a grievance on the applicant’s behalf. However, he denied that the union has refused to assist the applicant. He said that the applicant misinterpreted his comments at the April 2011 return to work meeting.
Conclusions About The Allegations Against The Union
20It is apparent that the primary dispute in this case is between the applicant and her employer. The primary complaint about the union is that it has not filed a grievance and has allegedly condoned the alleged discrimination and harassment by the employer and co-workers.
21The Tribunal has consistently held that these circumstances in and of themselves are not sufficient to successfully bring an Application against a union. As stated in Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996:
The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.
22In my view, the only allegation about the union that might suggest the alleged failure to act by the union was based on discriminatory factors is the allegation about the overheard conversation in May 2011. This allegation involves the applicant’s recollection of information relayed to her by a co-worker who overheard a conversation that the co-worker was not directly involved in. It appears to me that this allegation is not based on information that would be judged reliable if the allegations against the union were heard in a hearing before the Tribunal. Even if it were accepted it is not clear that it would result in a finding of discrimination by the union, as opposed to another example of an alleged failure by the union to pursue a grievance.
23For these reasons, I find there is no reasonable prospect that the allegations against the union would succeed in a hearing before the Tribunal. I therefore conclude that the Application as it relates to the union, Mr. Newell and Ms. Gilbert is dismissed. The union and the union personal respondents are thus no longer parties to the Application and the style of cause is amended accordingly.
Deferral to the WSIB
24At the hearing, the applicant explained that there are currently no issues under consideration at the WSIB. Ms. Erskine indicated that the applicant believes that the issues raised in the Application are not matters that the WSIB should be involved in. She advised that the WSIB has confirmed this as well.
25Mr. Conlin concedes that there is no ongoing adjudication at the WSIB. However, in his view, there should be. In particular, he submits that the WSIB has made a determination that the applicant does not require accommodation in terms of her hours of work as a result of the injury. He submits that the respondent employer is entitled to rely on that ruling, and that if the applicant does not agree with the WSIB’s determination, she should appeal that determination under the Workplace Safety and Insurance Act.
26Without commenting on the merits of Mr. Conlin’s argument, while the Tribunal will often defer consideration of an Application because there is ongoing adjudication of related issues at the WSIB, it does not generally defer because an applicant could be pursuing related issues at the WSIB. At the present time, there does not appear to be any proceeding at the WSIB to defer to and the Tribunal will not defer further consideration of the Application at this time.
Personal Respondents
27The Application names Kim Jenereaux and Jill Thompson as personal respondents. Ms. Jenereaux is the senior manager of operations at the Norview nursing home. Ms. Thompson was the Manager Organizational Health and Wellness Programs for Norfolk.
28Mr. Conlin submits that the two personal respondents should be removed as respondents.
29Rule 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 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.
30The 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 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 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?
31Applying these principles to the present case, it is my view that Kim Jenereaux and Jill Thompson should be removed as respondents. The corporate respondents Norfolk and/or Norview are alleged to be liable for the conduct of these two individuals and accepts deemed or vicarious liability. There does not appear to be any issue that Norfolk and/or Norview has the ability to respond to or remedy.
32While the applicant makes specific allegations about Ms. Jenereaux and Ms. Thompson in regard to interactions and events that occurred, there does not appear to be any doubt that everything that they are alleged to have done was done in the course of their respective employments with the corporate respondents and there does appear to be a basis to suggest that it might be appropriate to award a remedy specifically against the individuals if an infringement is found
33For these reasons, I am satisfied that it is appropriate to remove Ms. Jenereaux and Ms. Thompson as personal respondents and the style of cause is amended to reflect this.
NEXT STEPS
34The Tribunal will continue to process the Application against Norfolk and Norview. The parties have agreed to try mediation and the Tribunal will schedule a mediation session at the Tribunal.
35If the union wishes to intervene, it must file a Request to Intervene (Form 5).
ORDER
36There is no reasonable prospect that the Application could succeed as against the union and the union personal respondents Mike Newell and Christine Gilbert. The Application as against the union, Mike Newell and Christine Gilbert is dismissed on that basis.
37At this time there is no basis to defer further consideration of the Application to proceedings at the WSIB because at this time there are no proceedings underway at the WSIB.
38Kim Jenereaux and Ms. Jill Thompson are removed as personal respondents.
39I am not seized.
Dated at Toronto, this 19th day of March, 2012.
“Signed by”
Brian Cook
Vice-chair