HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Helen Watt
Applicant
-and-
Brockville Police Service and John Gardiner
Respondents
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: Watt v. Brockville Police Service
WRITTEN SUBMISSIONS
Helen Watt, Applicant
D. Bruce Sevigny, Counsel
Brockville Police Service and John Gardiner, Respondents
David Migicovsky, Counsel
Introduction
1This Decision addresses the following requests made by the parties: the respondents’ request that part of the application be dismissed as untimely; the applicant’s request to amend the Application; the applicant’s production request; and the respondents’ request to remove the personal respondent as a party to the Application.
application
2In her Application, the applicant alleges that the respondents discriminated against her because of sex and disability. She also alleges that the respondents were responsible for sexual solicitation or advances made toward her. Finally, she alleges that the respondents reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant filed her Application on September 21, 2012, one year after she began a medical leave on September 21, 2011.
3In the narrative portion in section 8 of her Application Form, the applicant sets out a number of alleged Code violations spanning a period of three and a half years from the Fall of 2008 to the Spring of 2012. For purposes of this decision, the allegations can be divided into the following categories:
a. Allegations of a poisoned work environment due, among other things, to alleged workplace sexual harassment by one of her colleagues and an alleged inadequate investigation of her complaint by the organizational respondent. These alleged incidents occurred from sometime in 2008 until the applicant went on medical leave in October 2008 (“first medical leave”).
b. Allegations of reprisal and a poisoned work environment after she returned from her first medical leave in January 2009. The alleged incidents described in the complaint occurred in early 2009.
c. An alleged incident of reprisal occurring sometime in 2011 but which the applicant only became aware of “in or around September 2011”. Specifically, the applicant alleges that the colleague she had charged with sexual harassment sent a formal letter of complaint to a Police Inspector about her. She claims that he did so as a reprisal and in an effort to undermine her professional reputation and credibility. The applicant ended up taking a second medical leave as of September 21, 2011 after she discovered the letter.
d. Allegations of reprisal and a poisoned work environment during the applicant’s second medical leave which began on September 21 2011. Specifically, the applicant alleges that the respondents have treated her in an aggressive, unwarranted and discriminatory fashion. She claims that the personal respondent has engaged in concerted campaign to bully and intimidate her. In particular, she claims that the respondents improperly denied her income replacement benefits and demanded she return to work contrary to medical documentation she had provided to support her absence.
Respondents’ Request to Dismiss
4In their Response, the respondents submit that the allegations relating to alleged incidents occurring prior to September 2011 are untimely. By e-mail dated January 21, 2013, the applicant declined to respond to the respondents’ request to dismiss. She took the position that her Application provided more than sufficient detail to make out a timely complaint against the respondents.
Legal Principles Regarding Delay
5Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed.
6In Sutherland v. District School Board Ontario North East, 2010 HRTO 2270, the Tribunal held the following with respect to the phrase “series of incidents” in s. 34(1)(b):
The common sense meaning of a “series of incidents” suggests a number of related or similar events occurring in temporal order or succession. It is not clear to me that incidents occurring 12 months or more apart can be said to be occurrences in temporal order or succession except in unusual circumstances. This is no less so when the claim is that the incidents created a hostile or poisoned environment.
7Generally, the Tribunal has not considered incidents to form part of a “series of incidents” if there is a break of more than one year between incidents.
8In this case, the Application was filed on September 21, 2012. Therefore, events prior to September 21, 2011 are untimely unless (a) they are part of a series of incidents the last of which occurred after September 21, 2011 or (b) there is a good faith reason for the applicant’s delay and no substantial prejudice would result from the delay.
9The applicant understandably sees a connection between all the incidents in her Application. In her view, all the incidents can be attributed to the old-boy workplace culture she claims is pervasive in the respondents’ workplace. However, as noted in Sutherland, even in cases where an applicant makes general allegations of a poisoned work environment, the incidents alleged in the Application must nevertheless form a series of related or similar events occurring in temporal order or succession in order to constitute a “series of incidents” within the meaning of the Code.
10In my view, the alleged incidents that occurred in 2008 and 2009 do not form part of a series of incidents due to a break of more than a year between these incidents and the next alleged incident that occurred sometime in 2011 (the letter of complaint submitted by the applicant’s colleague who she had charged with sexual harassment). In my view, the applicant’s allegation about this letter of complaint is also untimely as this allegation is unrelated to, and distinct from, the applicant’s reprisal allegations regarding incidents that occurred after September 21, 2011. The letter of complaint was written by the colleague who the applicant claimed had sexually harassed her. By contrast, the timely reprisal allegations all relate to the respondents’ actions or inactions in relation to the applicant’s claim for income replacement benefits. Although the applicant alleges that all of these events constituted a reprisal for having claimed her rights under the Code, they are different in character and involve different individuals and significantly different circumstances. For these reasons, I find that they do not form a series of events under the Code. As a result, the applicant’s allegation regarding the 2011 letter of complaint submitted by her colleague is also untimely.
11The applicant declined to advance any good faith reason for her delay in filing the untimely allegations. Therefore, there is no basis for me to exercise my discretion under s. 34(2). As a result, the allegations in the Application relating to events prior to September 21, 2011 are out of time and beyond the jurisdiction of the Tribunal.
12It does not follow from this conclusion that no evidence can be lead with respect to any of the untimely issues raised in the Application. Rather the effect of my conclusions is that the untimely allegations in the Application are not issues for which either of the respondents can be liable. The extent to which any evidence related to these alleged events is necessary to adjudicate the timely allegations in this Application is a matter better left to the Vice-chair presiding at the hearing to determine at the appropriate time.
Applicant’s Request to Amend Application
13By a Request for Order During Proceedings (“RFOP”) dated June 25, 2013, the applicant requests permission to amend her Application to include alleged acts of reprisal that she claims occurred after she filed her Application. The requested amendment is contained in Schedule B of the applicant’s RFOP. The allegations relate to the respondents’ continued denial of income replacement benefits to the applicant.
14In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and any prejudice to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926.
15The respondents oppose the applicant’s request to amend her Application claiming that the proposed amendment is unrelated to the allegations in the Application. I disagree. In my view, the new allegations relate directly, and represent the continuation of, the applicant’s reprisal allegations relating to her income replacement benefits which I have found to be timely.
16The respondent also argues that the amendment of the application would not be just or expeditious because it would necessitate an amended Response and further preparation of documents by the respondents’. I do not agree. I find that the timing of the applicant’s request to amend favours granting her request. The applicant filed her request the day of the mediation in this case. The Tribunal has not yet scheduled a hearing and the deadline for the parties to disclose relevant documents has not yet been set. Therefore, I see no undue prejudice to the respondents from granting the applicant’s amendment request. The respondents will, of course, be permitted to file an amended Response to respond to the allegations set out in Schedule B of the applicant’s RFOP.
17For the above reasons, I exercise my discretion to grant the applicant’s request to amend her Application to add the new allegations set out in Schedule “B” of the June 25, 2013 RFOP.
Applicant’s Request for Production
18In her June 25, 2013 RFOP, the applicant requested production of certain documents relating to the allegations contained in the amendment to her Application. The respondents oppose her request on the basis that it is premature.
19I agree. Rule 16 of the Tribunal’s Rules of Procedure (“Rules”) provides for disclosure of arguably relevant documents, which are not privileged, after the Tribunal sends a Confirmation of Hearing. No such Confirmation of Hearing has been sent. The Tribunal will not normally consider a request for disclosure or production of documents before that date has passed.
Respondents’ Request to Remove Personal Respondent
20The respondents request that the personal respondent be removed as a respondent to this Application. The personal respondent is currently the Chief of Police for the organizational respondent.
21Rule 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 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.
22The 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 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?
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.
23I note that the Tribunal has expressed caution when allegations of harassment and reprisal are made against personal respondents. In Sault v. Ontario Native Women’s Association, 2013 HRTO 807, the Tribunal stated as follows at para. 10:
When allegations of harassment and reprisal are made against individual respondents, compelling reasons exist to continue the proceeding against them even where a corporate respondent assumes liability. In such cases, the actions of the individuals alleged to have engaged in this conduct is the central issue. If findings of harassment and reprisal are made, individual remedies may be required to remediate their conduct. The fact that the corporate respondent may be jointly and severally liable for the conduct of its employees is not a basis to insulate the employees from personal liability. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876, 2012 ONSC 3876 (Div. Ct.).
24The respondents submit that the personal respondent should be removed because the organizational respondent accepts liability for the personal respondent’s conduct. The respondents submit that there is no issue as to the ability of the organizational respondent to respond to or remedy any Code infringement. The respondents also submit that there is no compelling reason to continue the proceeding against the personal respondent. The respondents rely upon the following decisions of the Tribunal: Blair v. Ottawa Police Services Board, 2009 HRTO 1237 and Collins v. London Police Services Board, 2011 HRTO 1947.
25The applicant did not file a Response to the respondent’s request.
26In her Application, the applicant claims that the personal respondent personally harassed and/or reprised against her. She alleges that the personal respondent has engaged in concerted campaign to bully and intimidate her. She also claims that he has been responsible for directly interfering with her claim for income replacement benefits. On the face of the Application, it is apparent that the personal respondent’s conduct is a central issue with respect to the applicant’s allegations of reprisal and/or harassment after September 21, 2011.
27This distinguishes this case from both Blair and Collins, cases in which the personal respondent’s actions were not a central issue. The applicant in Blair did not make any direct allegations against the personal respondent but merely named him because he was the Chair of the Ottawa Police Services Board. In Collins, the applicant made no direct allegations against the Chief of Police but merely sought to name him because he was “institutionally responsible for the actions of the police officers that report to him” and responsible for training officers. This case is more analogous to Millien v. Toronto Police Service, 2012 HRTO 2221 in which the Tribunal refused to remove a police constable as a personal respondent because his conduct was a central issue in the Application.
28For these reasons, the respondents’ request to remove the personal respondent as a party is denied.
Orders
29For the reasons set out above, the Tribunal orders:
a. The allegations contained in the Application regarding events that occurred prior to September 21, 2011 are dismissed as untimely. The extent to which any evidence related to these alleged events is necessary to adjudicate the timely allegations in this Application is a matter better left to the Vice-chair presiding at the hearing to determine at the appropriate time.
b. The Application is amended to add the allegations contained in Schedule B of the applicant’s June 25, 2013 RFOP.
c. The respondents are permitted to file an amended Response, copied to the applicant, within 21 days of the date of this Interim Decision. The applicant may file a Reply to the respondents’ amended Response. Any Reply must be filed with the Tribunal, and copied to the respondent, no later than 14 days after the respondents’ amended Response was sent to the applicant.
d. The applicant’s production request is dismissed as untimely.
e. The respondents’ request to remove the personal respondent as a party is denied.
Dated at Toronto, this 13th day of August, 2013.
“signed by”
Jo-Anne Pickel Vice-chair