Prothero v. Ontario (Community Safety and Corrections Services), 2013 HRTO 1491

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Prothero

Applicant

-and-

Her Majesty the Queen as represented by the Minister of Community Safety and Corrections Services as the Ontario Provincial Police, Fred Bertucca, Laura Young and Ted Clark

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: September 5, 2013 Citation: 2013 HRTO 1491 Indexed as: Prothero v. Ontario (Community Safety and Corrections Services)

WRITTEN SUBMISSIONS

Timothy Prothero, Applicant John Yach, Choose an item.

Her Majesty the Queen as represented by the Minister of Community Safety and Corrections Services as the Ontario Provincial Police, Fred Bertucca, Laura Young and Ted Clark, Respondents Lynette D’Souza, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability and reprisal. The applicant alleges that the respondents refused to accommodate his disability related restrictions despite clear medical documentation of his need and harassed him regarding his pursuit of accommodation.

2This Interim Decision addresses two Requests for an Order During proceeding: one filed by the respondents on March 4, 2013 (the “Respondents’ Request”) and one filed by the applicant on March 20, 2013 (the “Applicant’s Request”).

The Respondents’ Request

3The Respondents seek the removal of the individual respondents from the Application and the style of cause amended accordingly, amendment of the Application to remove reference to certain e-mail messages and a request for particulars regarding two paragraphs in the Application. The applicant filed a Response to a Request for an Order on March 19, 2013. The applicant provided the requested particulars; therefore, I need not address this aspect of the Respondents’ Request. For the reasons that follow, the respondents’ Request is denied.

Removal of Individual Respondent’s

4Rule 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 paragraph 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.

5The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 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.

6The respondents submitted the criteria for removal of an individual respondent set out in Persaud, supra, are met in this case. They submit that there is an organizational respondent, the Ministry, that is also alleged to be liable for the alleged discrimination. The Ministry has accepted vicarious liability in this matter and submits that it is in the best position to affect remedies for any violations of the Code. The respondents submit that the allegation arise in the context of the individual respondents’ employment; therefore, there is no compelling reason to continue the proceeding against the individual respondent. The applicant would suffer no prejudice because the individual respondents will be available as witnesses.

7The applicant submitted that the Application asserts that the individual respondents conspired to harass the applicant and to deny him accommodations to which he was entitled. The applicant pointed to e-mail evidence that it had produced that indicate: an intention to retaliate and harass the applicant, that the respondents were aware that the management of the applicant’s accommodation requests was problematic, that the respondent deliberately mis-handled the investigation of an internal harassment complaint and avoided having an independent medical evaluation performed because it would likely support the applicant’s accommodation request. The applicant asserts that the e-mail messages indicate the individual respondents were implicated these actions against the applicant. The applicant submitted that the individual respondents’ conduct was beyond the scope of their employment, which led the applicant to seek various remedies against each of them personally.

8In my view, there are compelling reasons to continue the Application against the personal respondents. The applicant’s allegations, if proven, could support findings of harassment pursuant to section 5(2) of the Code for which the organizational respondent would not be vicariously liable, pursuant to section 46.3(1). The applicant also alleges that the individual respondents engaged in acts of reprisal and that they intentionally and dishonestly blocked the applicant’s attempts to receive accommodation of his disability and his attempts to address workplace harassment. These allegations, if proven, arguably could support findings that the individual respondents acted outside of their employment responsibilities and findings that the individual respondents are jointly and severally liable, along with the organizational respondent, for any remedies the Tribunal might order. In these circumstances, it is not appropriate to remove the individual respondents.

Amendment of the Application

9The respondents submitted that the Application referred to several e-mail messages to which the applicant would not have been privy and he has not advised how he obtained these messages. The respondents submitted that the applicant’s apparently unauthorized possession of these e-mail messages raises concerns for the respondent with respect to security of the organizational respondent’s information systems, unauthorized access to e-mail accounts and privacy. The respondents submitted that the Tribunal should exercise its powers under the Tribunal Rules of Procedure (the “Rules”) to order amendment of the Application to exclude reference to the e-mail messages in light of these concerns. The respondent submitted that failure to grant this order may encourage inappropriate employee conduct.

10The applicant submitted that the documents the respondents seek to have excluded are relevant to the issues engaged in this matter and also noted that the respondent does not assert privilege over the documents or assert that they are false or inaccurate. The applicant submitted that given their relevance to the issues in play in the Application the respondents would in any event be required to disclose the documents. The applicant submitted that the respondent failed to identify the privacy issue at stake regarding the e-mail messages in question. The applicant noted that in Frolov v. Mosregion Investment Corporation, 2009 HRTO 1447 the Tribunal denied an objection to the admissibility of certain documents alleged to have been obtained inappropriately on the basis that they were arguably relevant and not excluded by privilege or any statutory rule.

11By letter dated April 5, 2013, counsel for the respondents clarified that the Respondents’ Request does not indicate that the respondents sought to have the e-mail messages excluded as evidence from the hearing or that they would not comply with their disclosure obligations under the Rules.

12Parties commonly seek to amend their own pleadings. A request to amend an opposing party’s pleadings is unusual and the respondent pointed to no decision in which the Tribunal made such an order. There may be circumstances in which such an order would be appropriate, but this is not such a case. The documents in question appear to be arguably relevant and are therefore subject to disclosure pursuant to Rule 16 of the Tribunal’s Rules in any event. The respondents also do not suggest that the documents would be inadmissible at a hearing. Accordingly, removing reference to the e-mail messages in question from the Application does not in my view serve any purpose. I also agree with the decision in Frolov, in which the Tribunal stated that how documents are obtained is not for the Tribunal to determine.

The Applicant’s Request

13The applicant seeks disclosure of a list of documents that he submitted are relevant to the issues in this matter. The applicant submitted that the respondents has the listed documents in their control and possession and have not produced these documents. The applicant acknowledges that he has not requested production from the respondents.

14As the respondents noted in their Response to a Request for an Order, the applicant’s request is premature. Rule 16 of the Tribunal’s Rules sets out the parties disclosure obligations. Pursuant to Rule 16.1, parties must disclose arguably relevant documents not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties. The Tribunal has not yet sent such a notice to the parties; therefore, the parties’ disclosure obligations have not been triggered.

Order

15The Tribunal orders as follows:

1. The Respondents’ Request is denied; and,
2. The Applicant’s Request is denied.

16I am not seized.