Draven v. The Hospital for Sick Children, 2014 HRTO 114

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erica Draven

Applicant

-and-

The Hospital for Sick Children, Vicky Ferreira, Peter Sawras, Richard Zajac, Marina D’Oliveira, Patricia Guselle and Sandra Paiva

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 27, 2014

Citation: 2014 HRTO 114

Indexed as: Draven v. The Hospital for Sick Children

WRITTEN SUBMISSIONS

Erica Draven, Applicant

Self-represented

The Hospital for Sick Children, Vicky Ferreira, Peter Sawras, Richard Zajac, Marina D’Oliveira, Patricia Guselle and Sandra Paiva, Respondents

Robert Weir and Kate Dearden, Counsel

Introduction

1This is an Application filed under s. 34 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. The applicant asserts that she was discriminated against when she informed the respondents of her medical condition and that the discrimination continued when her employment was terminated. The applicant was employed by the corporate respondent from January 7, 2013 until June 12, 2013.

2The respondents filed a Response to the Application on December 9, 2013. On the same day, they filed a Request for an Order during Proceedings asking the Tribunal to remove the individual respondents from the Application and order the disclosure of the applicant’s Occupational Health file held by the corporate respondent’s Occupational Health Department.

Request to Remove Individual Respondents

3The respondents submit that all of the allegations in relation to the individual respondents are within the scope of their responsibilities for the corporate respondent, there are no allegations for which the corporate respondent would not be held responsible, there are no remedies that the corporate respondent could not satisfy, there is no compelling reason to continue the proceeding against the individual respondents and the removal of the individual respondents does not prejudice the applicant.

4The applicant objects to the request to remove the individual respondents on the basis that they should be held accountable for their actions. She argues that a finding of corporate liability is not meant to act as a shield against a finding of individual liability where the acts of the individual constitute a violation of the Code. She argues further that the focus of human rights legislation is to provide an effective remedy to the complainant, a measure of which is the degree to which damages can be collected. She relies on the Tribunal’s decision in Farris v. Staubach Ontario Inc., 2012 HRTO 1826 in support of these submissions.

5Pursuant to Rule 1.7 (b) of the Tribunal’s Rules, the Tribunal has the power to add or remove a party. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal identified factors to consider when determining whether a personal respondent should be removed (para. 5):

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. Would any prejudice be caused to any party as a result of removing the personal respondent?

6The applicant appears to argue that the individual respondents must remain as parties to the Application because they allegedly had involvement in her work assignments and the termination of her employment. There is no suggestion that the individual respondents acted in their personal capacity or outside the course of their job responsibilities when dealing with the applicant. Thus, it appears there are no allegations in the Application that would attract personal liability on the part of the individual respondents.

7Based on the respondents’ submissions, the corporate respondent is prepared to accept any potential liability and is in a position to respond to the allegations and, if required, remedy any violations. There is no issue in this case regarding the degree to which damages can be collected. Indeed, the applicant has not asserted any specific prejudice if the individual respondents are removed and I am unable to discern any compelling reason to continue proceedings against the individual respondents.

8Having considered the Tribunal’s approach to the identification of individual respondents set out in Persaud above , I find that in the circumstances of this case, the individual respondents should be removed from the Application. For these reasonsthe respondents’ request is granted.

Disclosure of Occupational Health File

9The Occupational Health Department of the Corporate Respondent is involved in the accommodation process for employees with injuries, as well as the return to work process.

10The applicant’s Occupational Health Department file contains medical information about the applicant including doctor’s notes, as well as notes taken by those working in the Occupational Health Department. The applicant’s file is confidential and not accessible by the Corporate Respondent unless the applicant consents to its release or the Tribunal orders it disclosed. The corporate respondent seeks disclosure of the applicant’s Occupational Health Department “well in advance of the hearing”.

11Pursuant to Rule 16 of the Tribunal’s Rules of Procedure, all arguably relevant documents in the possession of a party must be disclosed to other parties no later than 21 days after the Tribunal sends a Notice of Hearing. As no Notice of Hearing has been issued in this case, the corporate respondent’s request for disclosure is premature.

12Although the applicant is not in possession of her Occupational Health Department file at this time, it is in her control. The applicant should request a copy of her file from the Occupational Health Department, review it and ensure all arguable relevant documents are produced to the corporate respondent within the normal timeline set out in the Notice of Hearing. The threshold test for disclosure is arguable relevance to an issue raised in the case . It may be that most of the documents in the file are arguably relevant given the applicant’s relatively short period of employment with the corporate respondent.

13If there is an issue regarding the applicant’s disclosure from her Occupational Health Department file, the corporate respondent may renew its request for further production at that time.

ORDER

14The individual respondents are removed as parties to this Application.