Ivanescu v. Credit Valley Hospital, 2012 HRTO 617

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eugene Ivanescu on behalf of Anna Ivanescu

Applicant

-and-

Credit Valley Hospital, The Manufacturers Life Insurance Company,

and Acclaim Ability Management

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: March 23, 2012

Citation: 2012 HRTO 617

Indexed as: Ivanescu v. Credit Valley Hospital

WRITTEN SUBMISSIONS

Eugene Ivanescu, Applicant ) Self-represented

Credit Valley Hospital, Respondent ) Kathyrn Bird, Counsel

The Manufacturers Life Insurance Company, ) Sophia Zaidi, Counsel

Eugene Rau and Jennifer Peeler, Respondents )

Acclaim Ability Management, Respondent ) Renee Smith, Counsel

1In this Application, filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant alleges that the respondents discriminated against the claimant, his wife, on the basis of disability with respect to employment.

2This Interim Decision addresses two Requests for an Order during Proceedings:

• the February 17, 2012 Request filed on behalf of the respondents, Manufacturers Life Insurance Company (“Manulife”), Eugene Rau (“Rau”) and Jennifer Peeler (“Peeler”) that the Application against them be dismissed and/or that they be removed as parties to the proceeding; and

• the March 5, 2012 Request filed by the respondent Acclaim Ability Management (“Acclaim”) seeking to be removed as a party to the proceeding and/or that the Application against it be dismissed.

3The applicant opposes both Requests.

4The respondent employer, Credit Valley Hospital, takes no position on whether the Requests ought to be granted.

5The respondent Acclaim submits that the Tribunal should dismiss the Application as against both Manulife and Acclaim. However, in the event that the Tribunal decides that Acclaim is a proper party to the Application, Acclaim submits that the Tribunal should also maintain Manulife as a party to the proceeding.

REQUEST TO DISMISS APPLICATION AGAINST MANULIFE, RAU AND PEELER AND REQUEST TO REMOVE RAU AND PEELER AS PARTIES TO THE PROCEEDING

6The respondents Manulife, Rau and Peeler ask that the Application against them be dismissed prior to the hearing on the basis that the applicant does not allege that Manulife, Rau and Peeler treated the claimant differently than other persons with the same medical condition as the claimant in a manner that created a disadvantage for her. Manulife, Rau and Peeler further submit that they are not and have never been the applicant’s employer and are not proper parties to the proceeding. In the alternative, the respondents Manulife, Rau and Peeler request that Rau and Peeler be removed as parties to the proceeding.

7In my view, the issue as to whether Manulife ought to be removed as a party to the proceeding and/or whether the Application as against Manulife ought to be dismissed cannot be determined at this stage, without the benefit of further submissions from the parties as to whether Manulife could be held liable for infringing the applicant’s rights under the Code in the circumstances of this case. In addition, the Code provides, in s. 43(2), that the Tribunal will not finally dispose of an Application within its jurisdiction without affording the parties an opportunity to make oral submissions. Accordingly, these issues will be addressed at the upcoming oral hearing.

8The request that Rau and Peeler be removed as parties to the proceeding is more readily addressed.

9Rule 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 46.3(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.

10The 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 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?

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.

11In this case, the respondents submit that, throughout their dealings with the applicant and the claimant, the personal respondents Rau and Peeler were acting in the course of their duties as employees of Manulife. Moreover, Manulife assumes liability for the personal respondents’ actions in the event that the personal respondents are found to have done anything that infringed the claimant’s rights under the Code. There is no issue as to Manulife’s ability to respond to and/or remedy the alleged infringement of the claimant’s rights under the Code as a result of the personal respondent’s actions. Accordingly, I cannot see how the applicant and/or claimant would be prejudiced by the removal of the personal respondents as parties to the proceeding. In the circumstances, it is appropriate to remove the personal respondents as parties to the proceeding and the style of cause is amended accordingly.

REQUEST TO REMOVE ACCLAIM AS A PARTY TO THE PROCEEDING

12The respondent Acclaim asks that the Application against it be dismissed prior to the hearing on the basis that it had no authority or control over the applicant’s employment during the relevant time frame and on the basis that it did not treat the applicant in a differential or disadvantageous manner with respect to employment.

13In my view, and as with Manulife, the issue as to whether Acclaim ought to be removed as a party to the proceeding cannot be determined at this stage, without the benefit of further submissions from the parties as to whether Acclaim could be held liable for infringing the applicant’s rights under the Code in the circumstances of this case. Accordingly, this issue will be addressed at the upcoming hearing.

ORDERS/DIRECTIONS

1. Eugene Rau and Jennifer Peeler are removed as respondents to this Application and the style of cause amended accordingly.

2. At the hearing, the parties ought to be prepared to make further submissions as to whether Manulife and/or Acclaim ought to be removed as parties to the proceeding.

3. In particular, the applicant ought to be prepared to explain his theory of the case against Manulife and Acclaim and specifically how, in his view, Manulife and/or Acclaim infringed the claimant’s rights under the Code.

4. In addition, the parties ought to be prepared to address the issue whether Manulife and/or Acclaim could be held liable for infringing the claimant’s rights under the Code, including, but not limited to, in the event that the applicant proves his allegation that the actions of Manulife and/or Acclaim caused and/or contributed to the applicant’s disability-related needs with respect to employment not being accommodated up to the point of undue hardship.

5. The parties ought to be prepared to address the issue whether removal of Manulife and/or Acclaim as parties to the proceeding could limit the remedy available to the applicant in the event that he proves his allegation that the claimant was discriminated against on the basis of disability with respect to employment.

6. All of the parties ought to be prepared to proceed with the case on its merits on April 4 and 5, 2012.

7. In reviewing the documents provided by the parties in advance of the hearing, the Tribunal notes that parts of some of the documents provided by Manulife are not legible (i.e. some pages appear to have been “cut off” when printed or photocopied). Accordingly, Manulife is directed to provide fully legible copies of those of its documents that are illegible to the other parties to the proceeding and to the Tribunal as soon as possible and in advance of the hearing.