Human Rights Tribunal of Ontario
BETWEEN:
Monique Savin Applicant
-and-
Granite Club Ltd Respondent
INTERIM DECISION
Adjudicator: David Muir Date: April 16, 2013 Citation: 2013 HRTO 628 Indexed as: Savin v. Granite Club Ltd.
WRITTEN SUBMISSIONS
Monique Savin, Applicant Self-represented
Granite Club Ltd, Respondent Donna M. D’Andrea, Counsel
1This is an Application filed under section 34 of Part IV 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. This Interim Decision deals with a number of issues raised by the parties.
Background
2On July 27, 2012 the Tribunal issued a Notice of Intent to Dismiss this Application to the applicant requesting her submissions with respect to the Tribunal’s jurisdiction to deal with the Application because it appeared that the Application may be outside the Tribunal’s jurisdiction because the narrative setting out the incidents of alleged discrimination failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent.
3In submissions received on August 27, 2012 the applicant clarified her allegations in the Application. The applicant alleged amongst other things that she is or was a person with a disability and that she requested appropriate accommodations which were denied by the respondents; and that her termination from employment was made the day after she sent an email requesting accommodation of an alleged disability.
4In 2012 HRTO 1759, 2012 HRTO1759 it was determined at that preliminary stage before the Application has been delivered to the respondent and a Response (Form 2) filed, the Tribunal would only dismiss an Application where it was plain and obvious that it is outside its jurisdiction. In light of the applicant’s submissions, I determined that it was not plain and obvious that the Application was outside of the jurisdiction of the Tribunal as there appeared to be allegations which if proven may establish a violation of the Code. I also noted that this determination was not a final Decision on the Tribunal’s jurisdiction to deal with this case.
5The Application was delivered to the respondents with the Interim Decision and a Response (Form 2) directed within 35 days. In their Response the respondent’s deny the allegations and indicate that the applicant did not disclose that she was a person with a disability or in need of accommodation until a decision had already been made to terminate the applicant’s employment for performance issues and for making false allegations of harassment.
6The applicant has filed a great number of Requests for Order During Proceeding which have not yet been addressed by the Tribunal. The respondent has filed a Request reiterating its position in the Response that the three individual respondents should be removed from the Application.
7In order to deal with the various Requests a discussion of the issues raised in the parties’ pleadings to date is required as background.
8In her Application, response to the NOID and Reply to the respondents’ Response and other materials the applicant has provided a highly detailed account of her experience while an employee of the corporate respondent. As the volume of material filed by the applicant the issues in dispute have come into somewhat sharper focus. It is also fair to observe that some of the applicant’s allegations have changed to some degree over time.
9In her material the applicant provides a very detailed narrative of her experience of workplace difficulties beginning with what she claims were unfair criticism of her work by colleagues and/or superiors. She also claims that she was told early on that people complained about working with her and when she asked who had complained she was told that she was not entitled to know who had made the complaints. The applicant also makes allegations of a great number of alleged violations of “HRPA rules of conduct”, the employment contract, the Occupational Health and Safety Act and other obligations of the respondents. I observe at this stage that it is not at all clear how these allegations relate to any Code issue.
10In her materials the applicant makes repeated allegations of bullying, harassment and mobbing. It is important to note that the connection between these allegations and an alleged disability is not clear in the material. As the Tribunal has indicated on many occasions it does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. To the extent that the applicant is complaining about personal harassment, bullying and mobbing these are likely matters that the Tribunal will be unable to deal with.
11In this case the applicant alleges that she was a person with a disability; that the respondents were made aware of this and that the respondents failed to accommodate her to the point of undue hardship. What is not clear after reviewing the applicant’s materials is when the respondent was informed, or ought to have been aware of the disability, and when the question of an accommodation would have first arisen. Workplace conflict leading to stress is not an issue that the Code speaks to unless and until a disability manifests itself and accommodation for the disability is sought or required. So for example while the applicant may feel that the criticism of her work was bullying, such behaviour would not likely constitute harassment or discrimination under the Code unless it was in some way related to a disability which had been made known to the employer in this case and for which accommodation was requested or required.
12The first mention of a disability in the narrative of the applicant’s experience is her suggestion that she advised Ms. Hogg on January 13, 2012 that what she felt was unfair criticism of her work, was causing her stress and interfering with her ability to do her work. This claim is stated somewhat differently each time it is articulated in the applicant’s materials. The respondent denies that Ms. Hogg was told anything like this on January 13, 2012. This is an area of significant dispute between the parties.
13The next time the possibility of the applicant being a person with a disability is mentioned in the narrative is in relation to a probationary review of the applicant’s performance in March 2012. The applicant considers that the probationary review was unfair because she had already completed her three month probationary period. She also complains that the content of the review was discriminatory and part of the bullying behaviour of the individual respondents. Whether or not the manner in which the probationary review was unfair is not a matter that the Tribunal can consider, again, unless it is somehow connected to the applicant’s claim to have been a person with a disability in need of accommodation. This is not clear on the basis of the material.
14The applicant claims that what she characterises as bullying and harassment was done in retaliation for her complaints about the unfair criticism of her work and was also discrimination on the basis of a disability. I observe at this point that the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights under the Code. See Noble v. York University, 2010 HRTO 878 at para. 31.
15On March 15, the applicant informed the three individual respondents in an email that she was off work due to stress and injury to her psychiatric health. She also advised that she was seeking legal representation and that her representative would contact the respondents. It is not clear whether it was the email or another communication which the respondent claims to have investigated but the applicant was suspended with pay on March 19, 2012 pending an investigation of her allegations. The respondents assert that the applicant’s complaints of bullying etc. were investigated but were not substantiated. On the contrary the corporate respondent’s alleged that the investigation indicated that the applicant could not get along with co-workers amongst other deficiencies in her performance and work habits.
16On March 25, 2012 the applicant sent an email to the corporate respondent formally advising the respondent that she was a person with a disability and requesting an accommodation. This is the first clear statement from the applicant that she was a person with a disability and in need of accommodation. The applicant set out a number of specific accommodations she required. The applicant argues that the corporate respondent had an obligation to allow her to return to work and “attempt to accommodate me to the point of undue hardship. The applicant’s employment was terminated on March 26, 2012. The applicant alleges that she was fired because the corporate respondent had been put on notice of her need for accommodation on March 25 and because the corporate respondent knew that it was in violation of the Code. The respondents assert that the decision to terminate the applicant’s employment had been made before the applicant’s email of March 25 and was not related to any Code issues. This is a significant issue in dispute in the case.
17In subsequent filings in particular in several of the Requests discussed further below the applicant makes a number of other allegations which go far beyond the allegations contained in the Application. For example in a Request filed on February 29, 2013 the applicant alleges that several individuals including the personal respondents were engaged in a conspiracy to injure her. The support for this allegation is combination of bald assertion, conjecture and speculation on the applicant’s part.
18Having reviewed the materials in the file to date it appears that the human rights issues arising out of the materials in this case are broadly speaking as follows:
a. Was the applicant a person with a disability at any material time;
b. When did the corporate respondent become aware (or ought to have known) that the applicant was a person with a disability and in need of accommodation;
c. Following b above was there an obligation on the part of the respondent to accommodate the applicant to the point of undue hardship in the circumstances;
d. Did the fact that the applicant indicate that she was a person with a disability and/or in need of and/or had requested an accommodation play any part in the decision to terminate the applicant’s employment on April 26, 2012?
19As indicated above the applicant makes a great number of allegations about alleged breaches of policy on dealing with complaints; alleged breaches of her employment contract and other complaints of unfairness in the workplace. The applicant alleges also breaches of the Occupational Health and Safety Act, the common law etc. and other norms that may or may not apply to the workplace. These allegations are not matters that the Tribunal can deal with unless they can be linked to the issues I have outlined above.
20The applicant makes a number of other allegations about the consequences of her termination. For example she complains about the fact that the employer only gave her four weeks’ notice of her termination and only kept her on the benefit plans for that four week period. It is not clear how these allegations, which are not controversial, could in their own right amount to a violation of the Code. Obviously if the applicant is able to establish that the Code has been violated there will be potential remedial claims she could make for lost wages and benefits.
21The applicant also alleges that she witnessed discriminatory comments made about club members. The applicant claims that this is harassment of her by the respondent. It is not clear how this could be the case. It is also clear that the applicant did not inform the respondent of these allegations until after her termination. It is not clear how such an allegation is, in any way, related to the issues in this case.
22These questions of the scope of this Application may be revisited as this Application moves further in the Tribunal’s process.
The Requests
23The applicant has made a number of Requests come of which were made using the prescribed Form 10, others perhaps not. These reasons only deal with those made via a Form 10.
24In a Request filed on November 28, 2012 the applicant sought to add a number of individual respondents including the entire Board of Directors. This Request is denied. The respondent took a number of positions in opposing this Request several of which appeared to have merit. However I have determined the issue based on the basis of there being no allegations made against these individuals which would support their being added to the Application.
25The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
Would it be fair, in all the circumstances, to add the proposed respondent?
26The application of the first question involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
27This Request as it relates to P.F and A.C. relates to what the applicant describes as indirect discrimination – this is in reference to allegedly discriminatory comments the applicant heard about a member of the respondent’s club. As previously indicated the applicant’s complaint about this incident was only made known to the corporate respondent after the applicant had been terminated. At this stage I am not satisfied that this is a matter that the Tribunal is able to deal with and it does not appear to have any bearing on the central issues as set out above.
28The rationale for the addition of each member of the Board of Directors is not the controversial proposition that they are responsible for the operation of the corporate respondent and are responsible for ensuring compliance with the Code and other statutes affecting amongst other things the workplace. However the applicant has made no allegations that any of the individual members of the Board did or failed to do something in respect of her issues in the workplace that would attract scrutiny on Code grounds except in the abstract sense that they are ultimately responsible for the operation of the club. Having regard to the factors set out above, there is no basis to add these many individuals to the Application.
29The applicant filed a Request on January 17, 2013 seeking the production of documents and particulars. As I previously indicated in a Case Assessment Direction issued on February 27, 2013 this Request appears to relate to the applicant claims for disability coverage and is likely for that reason not one that could be granted in the Tribunal process. It is also premature as the parties will soon be required to produce to each other all arguably relevant documents.
30The applicant filed a further Request on February 11, 2013 seeking the production of the pension plan and details of the interplay between the disability plan and the pension plan. This Request is denied. Similarly to the prior Request this request relates to the applicant’s claim for disability benefits and is likely not a matter that can be ordered produced in the Tribunal process. In any case as indicated above the Request is premature.
31The applicant filed a Request on February 15, 2013 seeking the production of particulars with respect to an accusation of theft. This Request is denied. The Request is premature and appears unrelated to any issue in dispute in this case. If the respondent is relying on an alleged theft to justify the applicant’s termination in whole or in part any documents or materials related to that should be produced in due course.
32The applicant filed a Request on February 19, 2013 seeking the production of her staff gratuity pay for 2012. The Request is denied. . The applicant claims entitlement to this gratuity because she was an employee of the corporate respondent. This is an issue that may be raised in the event that the applicant is able to establish that there has been a violation of the Code and the appropriate remedy is under consideration.
33The applicant filed a further Request on February 29, 2013 seeking to add new individual respondents and amend the Application by the addition of allegations against the CFO of the organization.
34The applicant argues that the CFO of the corporate respondent should be added because she conducted the investigation into the applicant’s complaints of harassment, bullying and mobbing etc., which she made on March 15, 2012. The applicant has a number of questions about this investigation but she makes no particular allegation about it other than she disagrees with the results of the investigation. At this stage of the proceeding it remains unclear as I have indicated above whether the applicant made any Code related claim in relation to the harassment and bullying. Workplace harassment is not a Code issue unless it is informed in whole or in part by Code grounds. The applicant appears to allege that the harassment was in the nature of unfair complaints about her work performance. The applicant claims that the material she has received from the disability carrier confirms that the CFO was conducting an investigation into allegations of Code related harassment. I have reviewed this document and while it confirms that on March 15 the applicant advised that she had taken ill due to stress and injury caused by the workplace conflict. I am not satisfied that at this stage there is any basis to conclude that there are allegations made against the CFO which would justify her being added to the Application.
35As regards the applicant’s Request to amend the Application, it is not at all clear what the applicant is seeking and that aspect of the Request must be denied as well. I do note that the applicant does include a number or remedial requests and I observe that the amounts claimed go far beyond the range of monetary remedies available for a case like this
The Respondents’ Request
36In their Response (Form 2) to the Application the respondents made a request that the individual respondents be removed from the Application. The Request is granted.
37Rule 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.
38The 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.
39The respondent Ms. Sullivan is the Assistant General of the corporate respondent. Ms. Hogg is the Director of Human Resources and Ms. Hale is Communications manager.
40Considering the factors discussed above I find that it would be appropriate to remove the personal respondents from this Application.
41As noted by the respondents there is a corporate respondents which is likely, in these circumstances, liable for the alleged actions of the named individuals. The allegations about the conduct of Ms. Hale and Ms. Hogg appear to relate largely to the applicant’s claim that her work was unfairly criticized and her ongoing attempts to have these concerns resolved. As I have indicated previously it is not clear whether, despite the detailed narrative of the applicant how these allegations engage the Code. The applicant’s claim of being a person with a disability arises more clearly in mid-March and then again on March 25, 2013 but on the applicant’s version of events as set out in the material, the involvement of Ms. Hale and Ms. Hogg is quite limited and in any case appears to be activity in the course of their employment for which the corporate respondent is responsible and at this stage of the proceeding conduct for which the corporate respondent accepts responsibility. Similarly the respondent Sullivan although more involved in the final stages of the narrative of the applicant’s complaints, Ms. Sullivan’s role in the decision making resulting in the alleged failure to accommodate the applicant’s disability and her dismissal from employment is all activity, clearly within the scope of her employment.
42The applicant does not claim that the corporate respondent is unable to respond to the Application or provide a remedy should the applicant be successful in establishing a violation of the Code.
43The applicant argues that in considering this the Tribunal must be mindful of the need for the applicant to have access to the evidence necessary to support her case. I do not agree. Whether or not these individuals have relevant evidence to give with respect to the issues in dispute is a separate question from whether or not they should be a party to the proceeding. The respondent has acknowledged that one or more of these individuals may be a witness in the proceeding.
44The applicant suggests that there are compelling reasons for these individuals as parties to the proceeding but these arguments are merely reiterations of her allegations and assertions that she states will establish a violation of the Code. These are not compelling reasons to justify the inclusion of these individuals as respondents to the Application. For these reasons I find that it would be appropriate to remove the personal respondents from the Application and the style of cause is amended accordingly.
45The applicant has withdrawn her consent to mediation and mediation was cancelled. Accordingly this case will be scheduled for a two day hearing.
46I am not seized of this case.
Dated at Toronto, this 16th day of April, 2013.
”signed by”
David Muir Vice-chair