Budd v. McDougall, 2013 HRTO 93

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Budd

Applicant

-and-

Celia McDougall and Roy McDougall

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: January 18, 2013

Citation: 2013 HRTO 93

Indexed as: Budd v. McDougall

APPEARANCES

Elaine Budd, Applicant Self-represented

Celia McDougall, Respondent Self-represented

Roy McDougall, Respondent Celia McDougall, Representative

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in employment on the basis of disability and age. This Interim Decision determines whether the Application will continue against the respondents.

BACKGROUND

2The following summary is based on the Application, Response and submissions made in writing and orally in the conference call hearing.

3The Application arises out of the applicant’s employment with Craiglee Nursing Home (“Craiglee”). The applicant alleged that her employer refused to accommodate her on the basis of disability when it did not provide her with a “tilt” board, height adjustable stool and adjustable chair for her work station as recommended by an ergonomist from the Workplace Safety and Insurance Board (“WSIB”). The applicant states that she complained to the respondent, Ms. McDougall, who refused to provide the accommodations. The accommodations were eventually provided (the chair in April 2009 and the tilt board in June 2009). The applicant also alleges that she was discriminated against on the basis of age when she was told that her position would be given to a younger person because older workers should retire so “young blood” can come in (a statement attributed to the respondent Ms. McDougall).

4Initially, the Application named three respondents: Craiglee (the applicant’s employer) and the two named individuals. At the time of the events in the Application, Craiglee was owned by the respondent, Roy McDougall and his wife (who is not named as a respondent). The McDougalls had owned the facility since 1969. Mr. McDougall was an administrator of Craiglee until November 2008. At that time, his daughter, the respondent Celia McDougall, who had been assistant administrator, became administrator and remained in this position until Craiglee went into receivership. While not an owner of Craiglee, Ms. McDougall was secretary of the corporation.

5Craiglee did not file a response to the Application. Instead, the Court appointed Receiver of the assets, undertakings and properties of Craiglee wrote to the Tribunal taking the position that the proceeding was stayed against Craiglee and enclosing a copy of the order of the Superior Court of Justice dated April 28, 2009 (the Receivership Order) in support of its position. The applicant responded by stating that she wished to withdraw against Craiglee and continue the Application against the two named individuals.

6A limited Response was then filed by the two named individuals. Apart from the general assertion that Craiglee made various attempts to accommodate the applicant, the respondents restricted their Response to the argument that the proceeding should also be stayed against them. The respondents stated that they were no longer employed at Craiglee and had no access to related records which are in the nursing home.

7On November 2, 2011, the Tribunal issued an Interim Decision granting the applicant’s request to withdraw the Application against Craiglee, finding that the stay did not apply to the individual respondents and issuing various directions regarding the continuation of the proceeding including directing the applicant to file detailed particulars of her allegations against the named individuals and providing the individual respondents with an opportunity to respond to the same: 2011 HRTO 1978.

8After the receipt of submissions from the applicant only, a hearing was held to hear further submissions on the issue of whether the Application should continue against the individuals. At the hearing, the applicant and Ms. McDougall attended. Ms. McDougall stated that she was making submissions on her own behalf and on behalf of Mr. McDougall. I directed that a written authorization be filed by Mr. McDougall (which was subsequently filed on June 6, 2012).

9The applicant argues that the Application should continue in respect of both of the individual respondents and that they should be held personally liable for their breaches of the Code.

10With respect to Ms. McDougall, the applicant submits that she provided direction to the assistant director of care to not accommodate her and repeatedly refused to return her to work. The applicant submits that in the fall of 2008, she was told specifically by Ms. McDougall that she would not be coming back to work unless she could do her regular job. The applicant relies on various documents relating to her disability and the issue of accommodation in support of her submissions regarding Ms. McDougall. Some of the documents are authored by other managerial staff or the WSIB but are copied to both of the named respondents. There is also a letter to the applicant from Ms. McDougall dated August 13, 2008 in which Ms. McDougall provides direction to the applicant to remain off work until she is able to resume normal duties.

11The applicant also relies on the age related comment in respect of Ms. McDougall. In the conference call hearing, the applicant clarified that in a meeting pertaining to her, the issue of it being “hard” for the applicant to do things arose and in response Ms. McDougall stated that “I guess it’s time for you to go [because we] need young blood.”

12The applicant makes no specific allegations against Mr. McDougall other than she submits that a manager at Craiglee told her that the issue of her accommodation was “in the hands of the McDougalls”, which she presumes includes him. The applicant states that as administrator for the period up to 2008, she also presumes that decisions had to go through Mr. McDougall. The applicant relies on various documents that she submits reflect Mr. McDougall’s involvement in the accommodation issue. One of these letters is addressed to her from Mr. McDougall confirming her return to work effective July 29, 2008. Mr. McDougall is also copied on certain correspondence such as the letter to the applicant from the assistant director of care stating that Craiglee is unable to meet her requirements and a letter from a case manager at the WSIB requesting a meeting to assist in the applicant’s return to work and obligations.

13The applicant originally cited reprisal but during the hearing indicated that she no longer relies on reprisal.

14Ms. McDougall states that she was involved with the interactions with Ms. Budd and the issue of accommodation, but that she relied on direction from professionals such as the director of care in dealing with the issue. Ms. McDougall states that Mr. McDougall was not directly involved although decisions were made in consultation with management and thus he would have been consulted “to some extent”. Ms. McDougall states that from November 2008, Mr. McDougall was not involved at all as he had ceased his involvement in the day to day management of the home for medical reasons.

15Ms. McDougall argues that to the extent the applicant is making a claim about accommodation, her actions were those of the corporation and she is not an owner of the corporation and thus should not face individual liability. Ms. McDougall acknowledges that an individual would be responsible for the age-related comment allegedly made although in this case, she disputes that the comments were made as alleged.

16Ms. McDougall filed further written submissions after the hearing referencing the “organic theory of corporate responsibility” (stating that a corporation should be liable where employees are part of the directing mind of the corporation) and section 46.3 of the Code, which deals with vicarious liability. Ms. McDougall submits that she and Mr. McDougall acted as agents of Craiglee and should be dealt with in the same manner (i.e. “dropped from the file”).

DECISION

17The issue before me is whether or not the Application should continue against the two named individuals. At this early stage, I find that it is appropriate to continue the Application against the respondents.

18In Johnson v. Yorkview Lifecare 2009 HRTO 1338 at para. 14, the Tribunal has held that “neither the statutory stay under the BIA, nor a court stay in either a receivership or CCAA is designed to shield solvent individuals from prosecution for acts for which they may be found to be personally liable.” Where such allegations are made which may result in personal liability, the Tribunal has permitted the applicant to continue to proceed against individuals. See, for example, Johnson, supra and Okunbo v. Nadiscorp Logistics Group, 2010 HRTO 423.

19In addition, it is important to consider the Tribunal’s approach in addressing requests to remove individual respondents where there is (or in this case was) an organizational respondent also named. In Persuad v. Toronto District School Board, 2008 HRTO 31 at para. 5, the Tribunal set out a non-exhaustive list of factors to be applied to such requests, including the following considerations: is there an organizational respondent that is also alleged to be liable for the same conduct; is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement, and; does any compelling reason exist to continue the proceeding against the individual respondent including whether the conduct of the individual respondent is a central issue in the proceedings.

20Notably, in a somewhat different context, in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876, the Divisional Court recently considered the question of individual liability for a damages award in a human rights case where a corporation was also found liable and ordered to pay damages. In the course of considering the issue in that case (whether it was reasonable to not order a remedy against individuals found liable for discrimination where a corporation, which was not operational, was also found liable), the Divisional Court affirmed several remedial principles which I find have relevance to the issue before me. The Divisional Court stated that the fact that a corporate respondent may also be jointly and severally liable for the conduct of employees is not a basis to insulate the employees from personal liability (Drummond v. Tempo Paint and Varnish Co. (No.4) (1998), 1998 CanLII 29860 (ON HRT), 33 CHRR D/175 (Ont. Bd. Inq.)). In commenting on the purpose of s. 46.3 of the Code, relied on by the respondents in this case, the Court cited Reyes v. Seepersaud, 2010 HRTO 933 at para. 7, and stated that the purpose is to confirm the parallel statutory liability of corporations for the actions of their employees, not to replace it. Further, the Court emphasized that the purpose of the Code is to provide an effective remedy to a complainant (or applicant) and one measure of this is the degree to which damages can be collected.

21Against this backdrop of law, I find that the central question to address is whether or not there are allegations made against either respondent that could support a finding that the respondent violated the Code. In the course of addressing that question, the Tribunal should also be mindful of all the factual circumstances and the legal framework, including the factors set out in Persaud and fundamental principles of human rights law recently affirmed by the Divisional Court.

22In the case of Ms. McDougall I find that there are specific allegations against her that may support a finding that she violated the Code. With respect to the age based comment, I find that the comment could support a finding that Ms. McDougall violated the Code. I note that Ms. McDougall herself acknowledges that this alleged comment could attract individual liability although she denies making the alleged comment.

23I am also satisfied that there are allegations made against Ms. McDougall about her refusal to accommodate which may support a finding that she violated the Code by refusing to accommodate the applicant by providing her with the measures requested. The applicant’s allegation is that Ms. McDougall was directly involved in this issue and repeatedly refused to accommodate her. At this stage, I cannot conclude that Ms. McDougall would not be found liable for refusing to accommodate the applicant.

24I have considered Ms. McDougall’s argument that the obligation to accommodate an employee is an employer responsibility and that to the extent she did or did not accommodate the applicant, she did so as an agent of the corporation. However, in this case, given the nature of the employer (a family run business in which she was a secretary of the corporation and occupied a senior position of either assistant administrator/administrator), the nature of the allegations against her (that she played a critical role in refusing to accommodate the applicant particularly in the fall of 2008 and into 2009), the early stage of the proceeding and the absence of a respondent organization defending it, I find that it is appropriate to continue the Application against Ms. McDougall.

25I reach the same conclusion about Mr. McDougall although I acknowledge the case against him is more challenging to assess. On the one hand, I understand that Mr. McDougall was one of two shareholders of the organization respondent and was administrator until November 2008. The applicant makes a general allegation that he refused to accommodate her although she clarified in the hearing that she “assumes” that decisions had to go through him (a claim that is supported by a manager telling her that the issue of her accommodation was in the hands of the “McDougalls” and some of the documentation being authored or copied to him). On the other hand, the applicant has not pointed to any specific allegation regarding Mr. McDougall and it would appear that he ceased playing an administrator role in November 2008 (which is mid-point in the applicant’s allegations).

26Ultimately, while I have some reservations, I have determined that the Application should continue against Mr. McDougall. At this stage, I have only a nominal Response to the Application which does not address in any detail, the reasons why the applicant was not accommodated. Having regard to all of the circumstances, including the nature of the corporate entity, and the acknowledgement by Ms. McDougall that decisions were made in consultation with management, and the absence of a corporation defending the Application, Mr. McDougall will remain a respondent.

27My decision to continue the Application against both respondents is not a final decision as to whether either is liable for the alleged discrimination should discrimination be proven nor is it a decision that if either respondent is found liable, it will result in a remedy being ordered against them. The parties will have an opportunity to make submissions on this issue as this Application continues to be processed.

28I find it appropriate to order that the respondents file a detailed amended Response setting out all of the information required in the Form 2 Response. Should the respondents remain unable to provide details given that the records are contained in the nursing home, I reiterate that the respondents may file a Request for an Order During Proceedings (Form 10) asking the Tribunal to order production of the same. Any such Request should be copied to the applicant, the Receiver or new owner of the nursing home, and the applicant’s union. The time frame for providing a detailed response is adjusted accordingly below.

29The Registrar will schedule a one day in person hearing, such hearing to be scheduled to accommodate the deadlines set out below

30The Tribunal directs:

i. The Application will continue to be processed against both respondents.

ii. The Respondents are directed to provide a detailed amended Response to the Application setting out their response to the allegations in the Application within 60 days of the date of this Interim Decision.

iii. Should the respondents require a production order to obtain documentation from another person (including the Receiver or other corporation) to provide their amended response, the respondents shall bring a Request for Order During Proceedings within 14 days of the date of this Interim Decision.

iv. The applicant may file a further Reply within 14 days of the receipt of the respondents’ amended Response.

31A copy of the Tribunal’s Mediation/Adjudication Agreement is attached to this Interim Decision should the parties wish to participate in that process at the hearing.