Herbert v. Aditya Birla Minacs Worldwide Inc., 2013 HRTO 321

Human Rights Tribunal of Ontario

Between:

Margaret Herbert Applicant

-and-

Aditya Birla Minacs Worldwide Inc. Respondents

Interim Decision

Adjudicator: Jo-Anne Pickel Date: February 27, 2013 Citation: 2013 HRTO 321 Indexed as: Herbert v. Aditya Birla Minacs Worldwide Inc.

Written Submissions

Margaret Eileen Herbert, Applicant Self-represented

Aditya Birla Minacs Worldwide Inc., Respondent Thomas Agnew, Counsel

Introduction

1This Interim Decision addresses three issues: (1) whether consideration of this Application should be deferred pending the conclusion of a claim filed by the applicant under the Employment Standards Act (the "ESA"); (2) whether it is appropriate to remove the two personal respondents named in the Application; and (3) the applicant's failure to comply with Tribunal deadlines.

Deferral Request

Factual Background

2By Application dated September 26, 2012, the applicant alleged that the respondents discriminated against her because of her disability and reprised against her when it denied her a medical leave and terminated her employment. The applicant claims that she provided the respondents with a note from her cancer specialist recommending that she take a ten day medical leave. She alleges that the respondents violated the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the "Code") when they denied the leave and considered her to have resigned her employment when she took the leave.

3On or around September 25, 2012, the applicant filed a claim with the Ministry of Labour seeking two weeks of termination pay in lieu of notice and vacation pay to which she claims to be entitled under the ESA. Although it is not clear from the copy of her claim filed with the Tribunal, it appears that she also claimed that she was reprised against under the ESA when she was refused emergency leave days prior to the end of her employment.

4In their Response to this Application, the respondents asked that the Application be deferred pending the outcome of the ESA claim. The respondents argue that, based on the information they have about the ESA claim at this time, it seems clear that the applicant's reprisal complaint directly relates to the issues raised in her Application.

5Despite being advised of the respondents' deferral request, the applicant did not file written submissions concerning this request.

Decision

6Pursuant to Rule 14.1 of the Tribunal's Rules of Procedure, the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative or at the request of any party. Deferral of an application ensures that proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatic simply because the parties are engaged in another proceeding. In all cases, the Tribunal must consider whether deferral is the most fair, just and expeditious way of proceeding with the application.

7Some factors that have been identified as relevant in deciding whether to defer consideration of an application before the Tribunal are: the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

8The Tribunal has deferred applications where there are on-going ESA claims with facts and issues that overlap with the subject matter of the Tribunal application. See, for example, Mounfield v. Cambridge Memorial Hospital, 2012 HRTO 1400 and Matechuk v. OLG at Thousand Islands, 2009 HRTO 324. However, the Tribunal has also declined to defer applications where the issues in an on-going ESA claim are distinct from those raised in the Tribunal application. See, for example, Grasley v. Sealtac Flat Roof Restorations Inc., 2012 HRTO 644; Jamjai v. Greenwood Mushroom Farm Inc., 2013 HRTO 96; and Legrand v. Primary Response, 2009 HRTO 337.

9Considering all the circumstances in this case, I do not find that deferral is appropriate. The applicant filed her ESA claim just a day before filing her Application therefore this is not a case where the ESA claim is at a much more advanced stage than the Application. As well, it is unlikely that the Employment Standards process will assess or determine the Code-related issues in the Tribunal Application. I find that any overlap between this Application and the applicant's ESA claim is minimal. Based on my review of the Employment Standards documentation, it appears that the applicant's ESA claim focuses on seeking two weeks of termination pay in lieu of notice and vacation pay to which she claims to be entitled under the ESA. The ESA claim is also based on an alleged reprisal for seeking compliance with the ESA.

10The focus of the applicant's Tribunal Application is on the respondents' alleged failure to accommodate her disability and alleged discrimination in the termination of her employment for having taken a medical leave recommended by her cancer specialist. Although the applicant also claims she was reprised against contrary to the Code, this reprisal claim is distinct from her claim that she was reprised against for seeking compliance with the ESA. In some cases, claims of reprisal under the Code and the ESA share the same factual foundation – for example, when applicants claim reprisal for taking pregnancy leave. The applicant's reprisal claims in this case are distinct. While these claims may share some facts, I find that the factual overlap, if any, between these two reprisal claims is insufficient to support the deferral of the Application.

11Accordingly, the respondents' request for deferral is denied.

Request to Remove Personal Respondents

12The respondents' request that the Tribunal remove two individuals who are named in the Application as personal respondents. The respondents submit that the only appropriate respondent in this Application is the corporate respondent.

13In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

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.

14The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 in deciding whether to remove an individual respondent from a proceeding:

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?

15The respondents submit that both personal respondents were acting within their professional capacity as employees of the corporate respondent in the actions or omissions alleged in the Application. The respondents argue that the applicant has not made any allegations that would support a finding that the personal respondents have violated the Code in their personal capacity. According to the respondents, the applicant has not pled any facts to support the finding that any act or omission committed by the personal respondents was not in law the act or omission of the corporate respondent. As such, the corporate respondent accepts that it is vicariously liable for any alleged Code violation.

16The applicant opposes the request to remove the personal respondents on the basis that she has made their conduct an issue in her Application. In her response, the applicant restates the various allegations she made with respect to the personal respondents in her Application.

17Considering all the circumstances, I find that it is not necessary to involve the two named individuals as personal respondents in order to have a fair, just and expeditious resolution of the merits of the Application. I accept the respondents' submissions that the allegations pertain to the individuals acting in the course of their employment and not in their personal capacities. All of the allegations relate to decisions made and incidents that occurred in the workplace, for which the corporate respondent would be liable. I am satisfied that there is no concern with respect to the corporate respondent's responsibility and ability to satisfy any remedies. As such, there does not appear to be any compelling reason to continue the Application as against the personal respondents given that, at all times, they were acting within the scope of their employment responsibilities.

18Therefore, the respondents' request to remove the personal respondents as parties to the Application is granted. The style of cause is amended accordingly.

Applicant's Failure to Comply with Deadlines

19In a letter dated February 12, 2013, the respondents object to the applicant's failure to comply with deadlines set by the Tribunal. As noted in the letter, the Tribunal granted the applicant's request for an extension to file her Reply as well as her response to the respondents' request to remove the two personal respondents. The Tribunal granted the applicant an extension until February 8, 2013 to file these materials. It appears that the applicant mailed the materials to the respondents on February 6, 2013 and the respondents received them on February 11, 2013. The respondents note that, under Rule 1.22(s) of the Tribunal's Rules of Procedure, documents sent by regular mail are not deemed received until five days after the postmark date. As a result, the respondents submit that the Tribunal should refuse to accept the applicant's materials since she failed to ensure delivery of her materials by the extended deadline set by the Tribunal.

20In the circumstances, I find it is appropriate to accept the applicant's materials. The applicant sent her materials before the extended deadline even if she did not take into account the five day time period before they were deemed to be received. In the absence of any prejudice to the respondents, I do not find it appropriate to refuse to accept the materials filed by the applicant.

21However, for future reference, the applicant's attention is drawn to Rules 1.21 and 1.22 of the Tribunal's Rules of Procedure which pertain to the delivery of documents to other parties.

22As the parties have agreed to mediation, the Application will be scheduled for mediation.

23I am not seized of this matter.