HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Deanna Steel
Applicant
-and-
Johnson Controls Automotive Canada LP and Paula Watkins
Respondents
INTERIM DECISION
Adjudicator: Sheri Price
Indexed as: Steel v. Johnson Controls Automotive Canada LP
WRITTEN SUBMISSIONS
Deanna Steel, Applicant
Self-represented
Johnson Controls Automotive Canada LP, Judy Smith and Paula Watkins, Respondents
Robert Atkinson, Counsel
1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against the applicant because of disability with respect to employment.
2In particular, the applicant alleges that the respondents discriminated against her in and around April 2013 when they required her to perform work duties that she could not perform because of her disabilities; by sending the applicant home on April 5, 2013, because of her disability and/or her inability to perform the duties assigned to her; and when the respondent employer’s Occupational Health Nurse, Paula Watkins, allegedly suggested that the applicant’s claim for certain disability benefits was not legitimate by telling the insurance company, “Our people know the system well” and provided false information about the applicant.
3In addition to naming her employer, Johnson Controls Automotive Canada LP, as a respondent, the applicant also named the corporate respondent’s Human Resources manager, Judy Smith, and its Occupational Health Nurse, Paula Watkins, as personal respondents to the Application.
4This Interim Decision addresses the following requests filed by the parties:
a. The respondents’ Request that all or part of the Application be dismissed pursuant to s.45.1 of the Code on the basis that a proceeding before the Workplace Safety and Insurance Board appropriately dealt with all or part of the substance of the Application;
b. The respondents’ Request for an Order during Proceedings removing the personal respondents as parties to the Application;
c. The applicant’s Request for an Order during Proceedings requiring the respondents to produce certain documents to her; and
d. The respondents’ Request for a summary hearing.
Section 45.1
5The respondents submit that part of the Application should be dismissed on the basis that a proceeding before the Workplace Safety and Insurance Board (“WSIB”) appropriately dealt with the substance of part of the Application within the meaning of s.45.1 of the Code, which states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules, if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
6In particular, the respondents submit that that part of the Application alleging that the respondents harassed and discriminated against the applicant at work on April 5, 2013, was appropriately dealt with by an Appeals Resolution Officer’s December 6, 2013 decision regarding the WSIB’s decision to close the applicant’s Work Transition plan. In that decision, the Appeals Resolution Officer concluded that duties assigned to the applicant by the respondent employer on April 5, 2013 were within the applicant’s restrictions for compensable injuries to her right elbow and/or right wrist and therefore suitable.
7Recent decisions of the Tribunal have clarified that, in deciding whether an Application ought to be dismissed pursuant to s.45.1 of the Code, the Tribunal must determine whether it would be unfair in all of the circumstances to bar the Code Application on the basis of another proceeding, taking into account the nature of the other proceeding; the applicant’s stake in it; and the parties’ reasonable expectations about the impact the prior proceeding would have on their broader legal rights, including whether the relevant statutory scheme contemplates parallel proceedings. Claybourn v. Toronto Police Services Board, 2013 HRTO 1298; McMurter v. Goodyear Canada Inc., 2013 HRTO 1858; K.M. v Kodama, 2014 HRTO 526; Kelly v. Inkas Security Services Ltd., 2014 HRTO 789. The broader policy implications of using the results of another proceeding as a basis to dismiss an Application under the Code is another factor to be considered: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19; Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA); Claybourn, above; McMurter, above.
8However, before getting to the point of considering whether it would be unfair to bar a Code Application based on an earlier proceeding, the Tribunal must first determine whether the earlier proceeding actually dealt with the substance of the human rights Application.
9According to the Appeals Resolution Officer’s (“ARO”) decision, the applicant took the position before the WSIB that she could not perform the duties assigned to her by the respondent employer in April 2013, at least in part, because of neck pain. The applicant takes this position in her human rights Application, as well.
10I agree with the respondents that the ARO determined that the work in question fell within the applicant’s restrictions in relation to compensable injuries to her right elbow and wrist. However, the ARO did not determine that the work was suitable with respect to any disability-related restrictions that the applicant may have had in relation to her neck. If anything, the ARO seems to accept that the applicant may have been unable to perform the work in question because of a problem affecting her neck. The ARO wrote, in relevant part:
The worker appears to have stopped work due to further issues and possible problems with her neck, for which she has been informed in subsequent letters from the Case Manager, that there is no entitlement in this claim for her neck problem. … [T]he work remains suitable for the worker’s right elbow and right wrist and as such, since the worker has removed herself form the workplace due to non-compensable issues, her WT [work transition] plan was closed appropriately.
11The substance of the human rights Application (or rather, part of the Application) is whether the requirement that the applicant perform certain work created a disadvantage for her because of her disabilities in general, including an alleged problem affecting the applicant’s neck. As is clear from the above-noted passage, this issue was not determined by the ARO or, if it was, it was not determined in the respondents’ favour. In the circumstances, it would be inappropriate to dismiss the Application pursuant to s.45.1 of the Code.
12In the normal course, there would still be a question as to whether factual findings made in the other proceeding ought to be applied by the Tribunal in the context of this proceeding, pursuant to the doctrine of issue estoppel or abuse of process: Hughes v. 1308581 Ontario, 2009 HRTO 341; Pilon v. Cornwall (City), 2010 HRTO 1509; Nowlan v. World Meats Inc., 2013 HRTO 747 at para. 23-25. However, I do not think that this applies in the instant case, because the ARO decision has been appealed to the Workplace Safety and Insurance Appeals Tribunal and is therefore not a final decision.
13Indeed, the fact that the ARO decision is under appeal is an additional reason to decline to dismiss the Application under s.45.1. In my view, it would be unfair and inappropriate to bar a Code Application on the basis of findings in a decision that is under appeal, given that the findings in such decision may end up being overturned and/or reversed on appeal.
14One of the preconditions for applying the common law doctrine of issue estoppel based on a decision in an earlier proceeding is that the decision in the earlier proceeding be a “final” decision. I am well aware that s.45.1 of the Code reflects the principles underlying the common law doctrines that aim to prevent unnecessary relitigation, including issue estoppel, abuse of process and collateral attack, as opposed to codifying the doctrines’ strict technical requirements. However, in my view, it would be at odds with the fundamental principles of fairness and finality underlying the doctrines that are reflected in s.45.1 of the Code, to apply a decision from another proceeding so as to bar a Code application, where the other decision is under appeal. Doing so could lead to Code applications being dismissed based on findings that are subsequently overturned or reversed on appeal. This would obviously be an absurd result and is to be avoided.
15For the above reasons, the respondent’s Request that part of the Application be dismissed under s.45.1 of the Code is denied.
REQUEST TO REMOVE PERSONAL RESPONDENTS
16As noted above, the respondents have filed a Request for an Order during Proceedings, seeking to have the personal respondents removed as parties to the proceeding.
17Rule 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 et al, 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.
18The Tribunal 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 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.
19In the case at hand, the respondents submit that it is appropriate to remove the personal respondents as parties to the proceeding on the basis that there are no allegations in the Application that, if true, could establish that the personal respondents infringed the applicant’s rights under the Code. The respondents also submit that the personal respondents were acting within the scope of their employment at all material times in their dealings with the applicant.
20The applicant opposes the respondents’ Request to remove the personal respondents as parties to the proceeding.
21Having considered the parties’ submissions, I find that it is appropriate to remove the Human Resources manager, Judy Smith, as a personal respondent to the Application. However, I am not persuaded that it would be appropriate to remove Ms Watkins as a respondent to the Application at this stage of the proceeding.
22In essence, the applicant contends that Ms Smith should be maintained as a party to the Application because, as the corporate respondent’s Human Resources manager, Ms Smith was responsible for ensuring that the applicant’s disability-related needs in the workplace were accommodated and for ensuring that the applicant’s allegations of harassment were properly investigated. In my view, this is not a basis to maintain Ms Smith as a personal respondent to the Application. The applicant’s allegation that her disability-related needs in the workplace were not accommodated up to the point of undue hardship and/or that her employer failed to take proper steps to address harassment in the workplace, if proved, might establish that the applicant’s employer, Johnson Controls Automotive Canada LP, infringed her rights under the Code. However, in my view, they are not the sort of allegations that could attract personal liability for Ms Smith under the Code. Accordingly, Judy Smith is removed as a party to this proceeding and the style of cause is amended accordingly.
23Unlike Ms Smith, Ms Watkins’ personal conduct is a central issue in the Application in the sense that one of the applicant’s main allegations is that Ms Watkins, the Occupational Health Nurse, made a derogatory and discriminatory comment about the applicant, outside the scope of Ms Watkins’ professional duties. The fact that one of the allegations in the Application relates to Ms Watkins’ individual conduct, as opposed to her merely applying the corporate respondent’s practices and/or policies, weighs against removing Ms. Watkins as a party to the proceeding.
24The respondents submit that, while the comment in question, “Our people know the system well,” may have been insensitive and even inappropriate, it was not discriminatory within the meaning of the Code. The respondents may ultimately prevail on this point. However, this goes to the merits of the Application. In my view, whether the comment in question was discriminatory is not an issue that is appropriately determined at this preliminary stage, in the absence of any evidence or further submissions.
25In sum, the respondents’ request to remove Judy Smith as a party to the Application is granted. The request to remove Ms Watkins as a party is denied at this time.
Request for production of documents
26The applicant has filed a Request for an Order during Proceedings seeking an Order requiring the respondents to produce certain documents on the basis that they are arguably relevant to the issues to be determined in this case.
27Rule 16 of the Tribunal’s Rules of Procedure set out rules for the disclosure and production of documents by the parties. Pursuant to Rule 16, the parties’ obligations with respect to pre-hearing production of documents are triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.
28The Tribunal has exercised its discretion to require early production of documents (i.e. before the normal times triggered by the issuance of the Notice of Hearing), but only in exceptional circumstances. In this case, the applicant has not identified any exceptional circumstances warranting an order for early production of documents by the respondents.
29The applicant’s request for production of documents at this stage is denied as premature.
Request for a summary hearing
30The Tribunal is in receipt of the respondents’ Request that a summary hearing be convened pursuant to Rule 19A to determine whether all or part of the Application ought to be dismissed on the basis that it has no reasonable prospect of success. Rule 19A.5 of the Tribunal’s Rules of Procedure provides that the Tribunal need not give reasons for a decision not to hold a summary hearing following a party’s request.
31I am not persuaded that this is an appropriate case in which to convene a summary hearing. Accordingly, the Request for a summary hearing is denied and the Application will be processed in the normal course.
ORDERS
32The respondents’ Request that the Application be dismissed pursuant to s.45.1 of the Code is denied.
33Judy Smith is removed as a respondent to the Application and the style of cause is amended accordingly.
34The respondents’ Request to remove Paula Watkins as a party to the Application is denied at this time.
35The applicant’s Request for production of certain documents is denied at this time.
36The respondents’ Request that the Tribunal hold a summary hearing in this matter is denied. The Application will continue to be processed in the normal course.
Dated at Toronto, this 11th day of August, 2014.
“Signed by”
Sheri Price
Vice-chair