Sault v. Ontario Native Women’s Association, 2013 HRTO 807

Human Rights Tribunal of Ontario

B E T W E E N:

Debora Sault

Applicant

-and-

Ontario Native Women’s Association, Betty Kennedy,

Colleen Maloney and Lou-Anne Lepage

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: May 14, 2013

Citation: 2013 HRTO 807

Indexed as: Sault v. Ontario Native Women’s Association

WRITTEN SUBMISSIONS

Debora Sault, Applicant

Jamie McGinnis, Counsel

Ontario Native Women’s Association, Betty Kennedy, Colleen Maloney and Lou-Anne Lepage, Respondents

Robert Edwards, Counsel

Introduction

1This Application, filed on July 26, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of sex, sexual solicitation, association with these grounds, and reprisal.

2The Application proceeded to mediation on April 12, 2013 and did not settle. This Interim Decision addresses a number of Requests for Orders During Proceedings (“RFOP”) that have been filed by the parties and held in abeyance pending the outcome of the mediation.

Applicant’s Request to Amend the Application

3On September 18, 2012, the applicant filed a RFOP to amend the Application to add a further act of reprisal that was discovered by the applicant after the Application had been filed. The respondents do not object to the amendment.

4In Aubin v. Sudbury Sexual Assault Crisis Centre, 2011 HRTO 1281, the Tribunal held it will consider the following factors when determining whether to grant an amendment:

a. The nature of the proposed amendment;

b. The reason for the amendment;

c. The timing of the amendment request; and

d. The prejudice to the respondents.

5The applicant became aware of the alleged act of reprisal on August 14, 2012. On September 18, 2012, the applicant acted quickly and requested the proposed amendment to the Application. Hearing dates have not yet been set in this matter, there is no prejudice to the respondents in granting the amendment and the respondents do not object to the amendment. For these reasons, the request to amend the Application is granted.

Removal of the Individual Respondents

6On October 12, 2012, the respondents filed an RFOP asking the Tribunal to remove the individual respondents from the Application.

7Rule 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, 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.

8The 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.

9The applicant alleges that she was harassed and reprised against when she reported that two of her co-workers had been sexually harassed in the workplace. The applicant alleges that she was denied training opportunities, duties were removed, she was prohibited from attending certain meetings and committees, and she was directed to resign her employment or risk termination. The applicant alleges that these decisions were made by the individual respondent, Betty Kennedy, with the involvement of the applicant’s direct supervisor, Colleen Mahoney, and the third individual respondent, Lou-Anne Lepage.

10When allegations of harassment and reprisal are made against individual respondents, compelling reasons exist to continue the proceeding against them even where a corporate respondent assumes liability. In such cases, the actions of the individuals alleged to have engaged in this conduct is the central issue. If findings of harassment and reprisal are made, individual remedies may be required to remediate their conduct. The fact that the corporate respondent may be jointly and severally liable for the conduct of its employees is not a basis to insulate the employees from personal liability. See Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.).

11At this stage in the proceeding, the involvement of the three individual respondents in the alleged harassment and reprisal is unknown. It may be that one or more of the individual respondents had no role to play in the decisions that the applicant alleges were harassing and a form of reprisal. The difficulty facing the applicant is that she does not know who was involved in the decisions; she only knows who communicated the decisions. I agree with the Tribunal’s comments in Madhani v. Sears Canada Inc., 2013 HRTO 290, that where an applicant does not have sufficient detail as to who was actively involved or responsible for the impugned decisions, the removal of individual respondents may not be appropriate at an early stage in the proceeding. At paragraph 43 of that decision, the Tribunal stated:

In my view, a request to remove a respondent because he or she is unlikely in the circumstances to be found personally liable under the Code should be considered with great caution where the applicant (and the Tribunal) is not in a position to know sufficient detail to be sure who was actively involved or responsible. Where the request has been made before disclosure of documents and witness statements, there is usually much less information available that could be relevant to the decision to remove a respondent.

12In this case, the parties have exchanged their pleadings. No documents or will- say statements have been disclosed. In my view, given the nature of the applicant’s allegations against the individual respondents, it is not appropriate to remove them at this time. This finding does not preclude the respondents from making this request again once pre-hearing disclosure has been made.

Strike Paragraph Three of the Application

13On October 12, 2012, the respondents filed a RFOP to strike paragraph three of the Application. The respondents state it contains allegations that are unfounded, prejudicial and scandalous and are not relevant to the alleged infringement of the Code. They state further that information regarding the Children’s Aid Society and their involvement in people’s lives is highly confidential and is not to be shared with the public.

14Rule 1.7 of the Tribunal’s Rules of Procedure allows the Tribunal to determine and direct the order in which issues in a proceeding, including preliminary issues, will be considered and determined in order to provide for the fair, just and expeditious resolution of any matter before it.

15In my view, the relevance and admissibility of the information contained in paragraph three of the Application is best determined by the adjudicator assigned to hear the Application and not as a preliminary matter.

Request to Dismiss Under Section 45.1 of the Code

16The respondents have asked for a dismissal of the Application because proceedings before the Ontario Labour Relations Board (the “Board”) involving the applicant’s two co-workers dealt with substantially the same facts as alleged in the Application.

17At this stage in the proceeding it is difficult to discern the applicability or the relevance of the Board’s decisions involving the applicant’s co-workers. The adjudicator assigned to hear this matter is in the best position to determine this issue.

ORDER

18The Tribunal makes the following orders:

a. The applicant’s request to amend the Application is allowed. The applicant shall deliver an amended Application to the respondents and the Tribunal by May 28, 2013. The respondents may deliver an amended Response to the amended Application to the applicant and the Tribunal by June 11, 2013;

b. The respondents’ request to remove the individual respondents is denied.