Iley v. Sault Ste. Marie (City), 2013 HRTO 1934

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Della-Marie Iley

Applicant

-and-

The Corporation of the City of Sault Ste. Marie, Joseph Fratesi and John Luszka

Respondents

INTERIM DECISION

Adjudicator: Eric Whist Date: November 21, 2013 Citation: 2013 HRTO 1934 Indexed as: Iley v. Sault Ste. Marie (City)

WRITTEN SUBMISSIONS

Della-Marie Iley, Applicant Self-represented

The Corporation of the City of Sault Ste. Marie, Joseph Fratesi and John Luszka Respondent(s) Paula Rusak, Counsel

1This is an Application filed on December 11, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment on the basis of disability, marital status and association with a person identified by a Code related ground. This Interim Decision addresses two issues; the respondents’ request to dismiss the Application for delay and the respondents’ request to remove the two named personal respondents as respondents.

BACKGROUND

2The applicant was employed by the City of Sault Ste. Marie, the named corporate respondent, as its Disability Case Manager. The applicant apparently began experiencing significant neck and shoulder pain on October 13, 2011. The applicant was off work intermittently between October 13 and November 9, 2011.

3The Application alleges the applicant tried to return to work during this period at the insistence of her immediate supervisor, John Luszka, a named personal respondent. The Application alleges the applicant was reluctant to return to work given the nature of her physical condition and her physician’s instructions to remain off work. The Application alleges that the medical documentation supporting the applicant’s absence from work was unduly challenged by Mr. Luszka who also refused the applicant’s offer to work at home.

4On November 9, 2011, the applicant met with Mr. Luszka and Joe Fratesi, the other named personal respondent. Mr. Fratesi is the chief administrative officer for the corporate respondent. The Application alleges that at this meeting the personal respondents both insisted that the applicant return to work and indicated that they had concerns with the applicant’s work performance. The Application alleges that at this meeting the applicant was offered a financial settlement if she was to resign which she did not accept.

5The Application alleges that on November 10, 2011 Mr. Luszka asked the applicant to return her corporate cell phone and her keys. The Application alleges that on November 22, 2011 the applicant’s counsel wrote to the corporate respondent to advise that the applicant had not resigned and that her absence from work was attributable to her disability.

6The Application alleges that on December 16, 2011, the applicant received her Record of Employment from the corporate respondent showing that her last day of employment was December 12, 2011, and that reason for the termination of her employment was that she quit.

7The Application alleges that on March 29, 2012, Service Canada informed the applicant that it had been told by the corporate respondent that the applicant’s employment ended because the applicant was unable to manage the workload and that the corporate respondent did not tell Service Canada that the applicant had been off work due to a disability. The Application alleges that once the applicant provided Service Canada with the medical documentation she had earlier provided the respondents Service Canada allowed the applicant’s claim for sick benefits.

REQUEST TO DISMISS THE APPLICATION FOR DELAY

8The Application was originally filed on December 11, 2012. The Tribunal determined that the Application was incomplete and directed the applicant to resubmit a completed Application, which she did on January 25, 2012.

9As part of their request to dismiss the Application for delay the respondents have identified January 25, 2012 as the date the Application was filed. This is inaccurate. Rule 6.5 of the Tribunal’s Rules of Procedure makes clear that it is the date that an Application is first filed that the Tribunal relies on which, in this case, is December 11, 2011.

10The respondents submit in their Response that the Tribunal should dismiss the Application for delay pursuant to section 34 of the Code as it was filed more than one year after the incidents that give rise to the Application. They submit that the last incident of discrimination was the November 9, 2011 meeting. It was at this meeting the respondents submit, that the applicant understood that her employment had ended regardless of whether the respondents terminated her employment as the applicant alleged or whether she announced she intended to leave her employment, as the respondents maintain.

11The applicant submits that her Application is timely given that it was filed before her last day of employment which was on December 12, 2011, according to the Record of Employment that was issued by the corporate respondent. The applicant further submits that the last incident of alleged discrimination was on March 29, 2012 when she was advised by Services Canada that the corporate respondent had told Service Canada that the applicant had quit her employment because of her workload and did not disclose that the applicant had been off work as a result of a disability.

12Section 34(1) and (2) of the Code states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13I find based on the information currently before me, that the Application is timely pursuant to section 34(1) of the Code. I do not accept the respondents’ submission that the last alleged incident of discrimination is November 9, 2011. While it appears that there was a discussion at the November 9, 2011 meeting about the applicant returning to work, the applicant’s performance issues and an offer of compensation was made to the applicant should she resign, it is not evident that this meeting either resolved or concluded the applicant’s employment.

14It does appear that on November 10, 2011 the applicant was asked for her keys and cellphone which may imply that the respondent was of the view that her employment was being ended. However, the respondent is not arguing that November 10 is the last possible incident of discrimination or that November 10 is the last day of the applicant’s employment. I find it significant that it appears the applicant continued to take the position that her absence from work after November 10, 2011 was due to her disability and that she had not resigned (as was apparently communicated to the respondents by the applicant’s counsel on November 22, 2011). I find it of further significance that the formal termination of the applicant’s employment as identified on the applicant’s Record of Employment is December 12, 2011 rather than an earlier date, for example November 10. The Record of Employment also states that the applicant quit, a contention that the applicant clearly disputes in her Application. Under these circumstances, I find that the formal termination of the applicant’s employment, on December 12, 2011 can be considered a further incident of discrimination.

15I would also note that the Application further alleges that the respondents discriminated against the applicant by communicating to Service Canada that she quit her employment, which the applicant submits she learned of on March 29, 2012. While there is some question as to exactly when the corporate respondent may have been in contact with Service Canada, I am satisfied that it must have taken place after the applicant’s employment with the respondent ended and as such takes place within one year of the filing of the Application. I find that this is a timely allegation and that it can be considered to be part of a series of alleged incidents of discrimination that renders the Application timely pursuant to section 34(1)(b).

16Accordingly, I find the Application filed on December 11, 2012 to be timely.

REQUEST TO REMOVE THE PERSONAL RESPONDENTS

17The respondents submit that Mr. Fratesi and Mr. Luszka should be removed as personal respondents as the corporate respondent agrees to assume liability for their acts. The respondents submit that the acts of the named personal respondents were at all times in keeping with organizational practices and policies. The respondents submit it is not necessary to involve these personal respondents as parties in order to have a fair, jut and expeditious resolution of the issue raised in the Application.

18The applicant opposes the respondent’s request to remove the personal respondents. The applicant submits that the conduct and the nature of the personal respondents’ conduct is a central issue in the Application and that it is open to the Tribunal to find that the personal respondents personally liable for their harassing and discriminatory conduct. The applicant submits that the personal respondents were not complying with corporate policies and practices including the corporate respondent’s guidelines for accommodating employees and that the personal respondents were holding the applicant to a higher standard of behaviour than other employees.

19Rule 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.

20The 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.

21I find that the alleged conduct of the personal respondents is a central issue in this case. The allegations advanced by the applicant are that the personal respondents had a direct role in what she maintains was a failure to accommodate her disability, and were responsible for what she claims was a discriminatory termination of her employment. She alleges that Mr. Luszka unduly pressed her to return to work notwithstanding medical documentation that supported her absence from the work place, her expressed reluctance to return to the workplace and her willingness to carry out some work at home. She submits that at the November 9, 2011 meeting she was pressed to immediately return to work by both personal respondents and was inundated by comments about her excessive medical absences from work (including past compensable injuries), allegations of poor performance and poor judgement in relation to a personal relationship with another employee of the corporate respondent. The applicant alleges she was eventually pressed to resign from her employment. The applicant has characterized these actions as both discriminatory and harassing.

22It is possible, in my view, that given Mr. Luszka and Mr. Fratesi’s roles and alleged conduct in the disputes between the parties, that individual remedies might be appropriate were this Application to succeed, notwithstanding the corporate respondent’s willingness to assume liability. I do not find that it would be fair or just to remove the personal respondents at this early stage in the proceedings. For these reasons the respondents’ request is denied.