Taylor-Cole v. Orangeville Police Association, 2013 HRTO 23

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sean Taylor-Cole Applicant

-and-

Orangeville Police Association, Lindsay White, Doug Fry and Diane Waddell (LeBlanc) Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price Date: January 4, 2013 Citation: 2013 HRTO 23 Indexed as: Taylor-Cole v. Orangeville Police Association

WRITTEN SUBMISSIONS

Sean Taylor-Cole, Applicant Self-represented

Orangeville Police Association, Lindsay White, Doug Fry and Diane Waddell (LeBlanc), Respondents Karen Ensslen, Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code"), alleging that the respondents discriminated against the applicant with respect to membership in a vocational association on the basis of disability.

2The respondent, Orangeville Police Association ("the association"), is the applicant's bargaining agent in respect of her employment with the Orangeville Police Service. The personal respondents were members of the association executive at the time of the events giving rise to the Application.

3In her Application, the applicant complains about the association's 2011 decision to withdraw from the arbitration of a 2007 grievance filed on behalf of the applicant against her employer. Among other things, the applicant alleges that the personal respondents made derogatory remarks and/or gestures about the applicant based on her disabilities when the applicant attempted to appeal to the association's members to overturn the executive's decision to withdraw from further participation in the applicant's grievance.

4The respondents have filed a Request for an Order during Proceedings seeking to have the Application dismissed on a preliminary basis pursuant to s.45.1 of the Code and/or on the basis that it discloses no prima facie case. In the alternative, the respondents seek to have the Application deferred pending the completion of a grievance arbitration hearing in respect of a grievance filed against the applicant's employer, the Orangeville Police Service. The respondents also seek to have the personal respondents removed as parties to the proceeding.

5Although the respondents requested that a conference call be convened to address the above-noted Request, in my view, the Request is readily addressed based on the materials already before the Tribunal; and this is the most fair, just and expeditious manner in which to proceed.

BACKGROUND

6The applicant worked as a police officer with the Orangeville Police Service. In 2007, the applicant filed a grievance through the association alleging that she had been harassed by two of her supervisors from 2004 until 2006. The applicant's grievance was referred to arbitration by the association before Arbitrator Mary Ellen Cummings.

7In December 2010, a new executive was elected to lead the association. The personal respondent Lindsay White was elected as President of the association; personal respondent Doug Fry as Vice-President; and personal respondent Diane Waddell (LeBlanc) as civilian director.

8By letter dated February 22, 2011, the association advised the applicant that it was withdrawing from any further participation in her grievance arbitration hearing. The stated reason for the association's withdrawal was the applicant's mistrust of the association's executive and its legal counsel, as well as the applicant's attempts to prevent the association's legal counsel from communicating with the executive about the grievance. The respondents submit that the high cost of the litigation was also a key factor in the association's decision. The association advised the applicant that she could continue with the grievance on her own behalf, or with another representative, at her own expense, if she wished to do so.

9In a decision dated February 24, 2011, Arbitrator Cummings adjourned the grievance arbitration proceeding sine die. In her interim award, the arbitrator noted that the employer, the Orangeville Police Service, took the position that the applicant would not be entitled to continue with the grievance on her own, in light of the association's withdrawal from the proceedigns. The arbitrator herself also expressed some doubt about the applicant's ability to pursue such an option. However, she found it was not necessary to determine whether the applicant could proceed with the grievance on her own unless and until the applicant indicated that she wished to do so. The arbitrator directed the applicant as to the steps to be taken by her if she wished to continue the arbitration hearing on her own.

10The respondents submit that to their knowledge the applicant has not sought to proceed on her own with the arbitration of her grievance.

REQUEST TO DISMISS UNDER S. 45.1/REQUEST TO DEFER TO GRIEVANCE ARBITRATION HEARING

11The respondents submit that the Application ought to be dismissed pursuant to s.45.1 of the Code, which states:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

12Specifically, the respondents submit that "the substance of the Application" is the applicant's complaint that she was harassed by two of her supervisors during the period from 2004 to 2006. The respondents submit the applicant's complaint in this regard is also the subject of a grievance that was filed against the Orangeville Police Service in or around 2007. The respondents submit that the grievance arbitration proceeding in respect of the applicant's 2007 grievance "appropriately dealt with" the substance of the Application. In the alternative, the respondents submit that the hearing of the Application before the Tribunal should be deferred pending the conclusion of the above-noted grievance arbitration proceeding.

13In my view, there is no basis upon which the Tribunal might conclude that the arbitration proceeding before Arbitrator Cummings appropriately dealt with the substance of the Application before the Tribunal.

14Although the respondents have attempted to characterize the substance of the Application as the applicant's complaint that she was harassed by two of her supervisors while she was employed as an officer in the Orangeville Police Service, in my view, this is clearly not the case. On the contrary, it is clear from the Application and the submissions made by the applicant in this matter that the substance of the Application is the applicant's complaint that her bargaining agent, the Orangeville Police Association, and certain members of the association's executive (i.e. the personal respondents) discriminated against her because of her disability with respect to her membership in a vocational association. In particular, in her Application, the applicant complains about the association's February 2011 decision not to proceed with the arbitration of her grievance; as well as the manner in which she was allegedly treated by members of the association executive, especially during the March and April 2011 meetings of the association's membership. There is no suggestion that the manner in which the association and/or the personal respondents allegedly treated the applicant was an issue before the arbitrator appointed to hear the applicant's 2007 grievance against her employer. Accordingly, there is no basis upon which the Tribunal might conclude that the arbitration hearing before Arbitrator Cummings appropriately dealt with the substance of the applicant's human rights Application against the respondents in this case.

15The respondents' request to dismiss under s.45.1 of the Code is denied accordingly.

16I must also dismiss the respondents' request that the Tribunal defer consideration of the Application pending the completion of the grievance arbitration proceeding before Arbitrator Cummings.

17Deferral of an application seeks to ensure that proceedings dealing with the same facts or issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

18In this case, there is no ongoing grievance arbitration proceeding dealing with the same facts and issues as the human rights Application. Accordingly, there is no basis to defer the Application. The reason for deferring an Application – avoiding inconsistent findings of fact or law by adjudicators in concurrent proceedings – does not exist where there is no ongoing proceeding before the arbitrator with respect to the subject-matter of the Application.

19For the above reasons, the respondents' request to defer is denied.

REQUEST TO REMOVE PERSONAL RESPONDENTS

20I must also deny the respondents' request that the personal respondents be removed as parties to the proceeding.

21Rule 1.7(b) of the Tribunal's Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 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:

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 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.

23In this case, the respondents submit that it is appropriate to remove the personal respondents as parties to the proceeding because all of their actions or inactions were taken in their capacities as members of the association executive. The respondents further submit that no remedy is sought against the personal respondents that could not be satisfied by the association and that there would be no prejudice to the applicant if the personal respondents were removed as parties to the proceeding.

24The applicant opposes the removal of the personal respondents as parties to the proceeding on the basis that the substance of her Application relates to the conduct of the personal respondents.

25In my view, it would not be appropriate to remove the personal respondents as parties to the proceeding in the circumstances of this case. In this case, among other things, the applicant alleges that the personal respondents treated her in a discriminatory manner when they collectively referred to the applicant as mentally unstable, a "loonie", a "drug addict", and made a physical gesture as the applicant addressed the association's membership to convey that the applicant was "crazy". Such alleged conduct on the part of the personal respondents is a central issue in this case. This factor weighs against removing the personal respondents as parties to the proceeding. In addition, although I accept that the association may be in a position to satisfy any remedy that the Tribunal might award in this case, it is not clear to me at this stage of the proceeding that the assocation would be liable for the personal respondents' alleged conduct towards the applicant pursuant to s.46.3 of the Code. This also weighs against the removal of the personal respondents as parties to the Application at this stage of the proceedings.

26The request to remove the personal respondents as parties to the proceeding is denied accordingly.

REQUEST TO DISMISS THE APPLICATION AS DISCLOSING NO PRIMA FACIE CASE

27In their Request, the respondents also seek to have the Application dismissed before a hearing on the merits of the Application on the basis that the Application discloses no prima facie case of discrimination under the Code.

28At an earlier stage in this proceeding, a summary hearing was held pursuant to Rule 19A of the Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it would succeed. Following the summary hearing, and having considered the applicant's allegations and the parties' submissions about whether the Application had any reasonable prospect of success, I came to the following conclusion:

At this stage, it is obviously not appropriate for the Tribunal to make any factual or legal findings with respect to the applicant's allegations. Suffice it to say that, having heard and considered the applicant's allegations, I am unable to conclude that the applicant has no reasonable prospect of success in establishing a link between the events alleged to have occurred and the Code protected ground of disability. The Application will therefore continue in the Tribunal's process. (2011 HRTO 2285 at para. 11)

29In my view, the respondents' request that the Tribunal dismiss the Application before hearing it on its merits on the basis that it discloses no prima facie case is tantamount to a request that the Tribunal dismiss the Application as having no reasonable prospect of success. As noted above, this issue has already been decided by the Tribunal. The Application needs to be heard so that the Tribunal can determine on the basis of the evidence presented whether the respondents treated the applicant in the manner alleged and/or whether the alleged adverse treatment was linked in whole or in part to the applicant's disability(ies) such that it constituted discrimination on the basis of disability.

30This, of course, does not preclude the respondents from seeking to have the Application dismissed on the basis that the applicant has failed to make out a prima facie case of discrimination at an appropriate time at the hearing of the Application.

NEXT STEPS

31The respondents have requested that a conference call be convened for the purpose of clarifying the scope of the Application in light of certain of the applicant's recent submissions. I agree that this is appropriate in the circumstances of this case. The Registrar will contact the parties regarding the scheduling of such a conference call in advance of the hearing of the Application on its merits.