Wing v. Niagara Falls Hydro Holding Corporation, 2014 HRTO 1472

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Wing

Applicant

-and-

Niagara Falls Hydro Holding Corporation

Respondent

DECISION

Adjudicator: Naomi Overend

Date: October 2, 2014

Citation: 2014 HRTO 1472

Indexed as: Wing v. Niagara Falls Hydro Holding Corporation

APPEARANCES

Janice Wing, Applicant

Self-represented

Niagara Falls Hydro Holding Corporation, Respondent

Mark DiGirolamo, Counsel

Introduction

1Janice Wing, the applicant, sits on the Board of Directors of the Niagara Falls Hydro Holding Corporation (“HOLDCO”). Until the end of 2012, the Board met periodically, with meetings typically commencing at 4:00 p.m. The applicant brought this Application in early 2013, after learning that (1) the meeting time was going to be moved to 3:30 p.m. and (2) the Board had passed a resolution which would require directors who missed two consecutive meetings to be removed from the Board. She alleged in her Application that the requirement to attend meetings at that time would interfere with her parental obligation to pick up her young daughter from school, resulting in discrimination in employment on the basis of family status, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2Subsequent to filing the Application, a series of media articles were published that discussed the applicant’s absence from Board meetings in 2012. The applicant alleges that the only persons who would be aware of this information were Board members or officers of HOLDCO, since attendance at meetings was not public information. She sought to amend her Application to include reprisal.

3For the reasons discussed below, I find that the applicant has not proven discrimination in employment on the basis of family status on a balance of probabilities. I am unable to determine the reprisal allegation and am requesting further submissions from the parties on a number of issues relating to that allegation.

Factual Background

4There was very little discrepancy in the testimony of the three witnesses who testified at this proceeding and it was not necessary, therefore, for me to make credibility findings. Where there was disagreement, it was generally on the interpretation placed on facts, rather than the facts themselves. Often the information given was within the exclusive knowledge of the person testifying or otherwise supported by documents. Where the testimony of the witnesses is referred to in this Decision, I have accepted it as proof of the facts for which it was offered.

5As a testament to the level of agreement between the parties, after Wayne Thomson testified, the applicant advised the Tribunal that she accepted his explanation of events and asked to have him removed as an individual respondent to her Application. I made an oral ruling, on consent, dismissing the Application as against Wayne Thomson.

The Parties

6The applicant is a municipal Councillor for the Corporation of the City of Niagara Falls (“Niagara Falls”). Niagara Falls is the sole shareholder of Niagara Falls Hydro Holding Corporation (“HOLDCO”), the respondent in this Application. HOLDCO is an entity created to hold Niagara Falls’ shares in Niagara Peninsula Energy Inc. (“NPEI”), a private corporation responsible for the hydro distribution system for a portion of the Niagara Region, which includes Niagara Falls. HOLDCO is a majority shareholder in NPEI, while another smaller municipality holds the remaining shares.

7HOLDCO is run by a Board of Directors, which is composed of the nine members of Niagara Falls’ Council (i.e., the eight Councillors and the Mayor). Thus, as a member of Council, the applicant is also a member of the Board of HOLDCO. The applicant receives a $4,800 honorarium to sit on the Board of HOLDCO in addition to the remuneration she receives as a Council member.

8In addition to the Board, the respondent also has three or four officers, who handle the small amount of administrative work generated by it. The Tribunal heard evidence that Sue Forcier, who is the Secretary to the Board, would make arrangements and send out the agendas for the upcoming Board meetings.

9Generally, when the applicant needed to speak to someone about her attendance at HOLDCO meetings, she would contact Forcier. However, on at least one occasion when she had not heard back from Forcier about an issue related to her attendance (discussed in greater detail below), the applicant contacted Brian Wilkie, then the president of HOLDCO, about the problem.

2012 / 2013 Board Meetings

10Until 2013, the HOLDCO Board met approximately three times per year, on an ad hoc basis. The dates were set after the Chair, in conjunction with the secretary, determined there were matters that needed to be addressed. The parties agree that there was no issue with the applicant’s attendance at these meetings until 2012, when events conspired to make her miss all three meetings that year.

11The first meeting of the year was scheduled for April 11, 2012, rescheduled to April 23, 2012 and finally held on April 30, 2012 at 3:30 p.m. Meetings would be re-scheduled when members of the Board or a HOLDCO officer advised they were not able to attend. The applicant had planned to attend this meeting, but was unable to at the last minute because she was responsible for filing several tax returns that year (including the return for her mother’s estate). She advised Forcier of this by email on the day of the meeting.

12Another meeting was scheduled for July 12, 2012 at 4:00 p.m. The applicant did not attend this meeting because she had a conflict on what she believed was the only issue of substance to be addressed. She again advised Forcier she would not be attending.

13The Board members were advised on October 31, 2012 that the final meeting of the year was being held on November 20, 2012 at 3:30 p.m. The applicant’s first email to Forcier, sent on October 31, 2012, said:

That time won’t work for me while Bill [the applicant’s spouse] is working at his present job. I have to pick our daughter up from her St. Catharines school at 3:45 pm. No one else is available to do this at present.

14Forcier responded to this email by asking the applicant if she would be coming at 4:30. The applicant responded as follows:

It’ll likely be closer to 5:45 or 6:00. She has her private swimming lesson at Brock at 5:30 on Tuesdays this term.

Since Bill probably won’t be off until 5:00, I’ll have to drive her there and wait until he arrives before I’ll be able to get away. Sorry about the motherhood thing.

The meetings for HOLDCO are in Niagara Falls. The daughter’s school is in St. Catharines, as were her swimming lessons. The applicant testified that it takes her approximately 20 minutes to drive between the two cities.

15The applicant wrote a further email to Forcier suggesting she may be able to get away earlier, but not to count on her showing up. In the end, the applicant did not come to the November 2012 meeting.

16Wayne Thompson, a fellow Councillor and the Chairman of the HOLDCO Board testified that the other Board members made note of the applicant’s 2012 absences at this November meeting. Thompson recalled that Forcier merely passed on the applicant’s regrets to the Board; not the reasons for the applicant’s absences.

17The minutes of this Board meeting reflect that a resolution was proposed and adopted to attempt to curtail future absences. After a discussion, it was resolved that (1) there would be six scheduled meetings in 2013; (2) that a director would be removed from the Board if he/she missed two consecutive meetings; and (3) that the Chairman would send a letter to this effect to the Board members.

18Wilkie testified that the portion of the resolution related to removing directors for non-attendance was unenforceable since it was Niagara Falls Council that determined the composition of the Board, not the Board itself. The Minutes, however, reflect, that he said nothing about its enforceability to the Board at the time they proposed and passed this resolution. In any event, no attempt was ever made to enforce the removal provisions even when a director, who for medical reasons, did not attend two consecutive meetings after the resolution was passed.

19The applicant was apparently unaware of this discussion until she received the Board package on December 17, 2012 enclosing the Minutes from the November meeting, a proposed schedule of six meetings for 2013, and the Chairman’s letter, which stated:

Please be advised that at our last board meeting on November 20, 2012 discussion took place regarding Director’s remuneration related to attendance. A motion that now states and carried:

“It is duly resolved that the Chair of the Board send a letter of notice to the directors by December 31, 2012 that specifically states that if a director misses 2 consecutive scheduled Board meetings in a calendar year, then he or she will be removed from the Board. Further Niagara Falls Hydro Holding Corporation will have 6 scheduled Board meetings in 2013.”

If you have any questions or concerns, please do not hesitate to contact me directly. [Emphasis in original]

20The proposed start time for the meetings was 3:30 p.m. Although two of the three meetings in 2012 started at 3:30, the applicant advised the Tribunal that meetings prior to 2012 typically commenced at 4:00 p.m. (and one even at 4:30 p.m.).

21The applicant understood this resolution was directed at her. She responded the next day (December 18, 2012) by writing to Forcier about the first meeting of the New Year, scheduled for February 13, 2013. Her husband’s employment status was, at the time, in question, but she advised Forcier that if he was working that day, she would have the same problem with the 3:30 start time as she did for the November 2012 meeting. That is, if she was responsible on the day in question for picking her daughter up from school, she would be late and might also have to bring her daughter with her to the meeting.

22The applicant did not hear back from Forcier about this, and so wrote a long email to Wilkie (then the president of the Board) the next day, which she started by asking whether there would be a problem with her bringing her daughter to the meeting. She then went into the history of the issue, including the reasons for her non-attendance in 2012. She concluded her email by advising Wilkie that she intended to approach the Human Rights Tribunal about the problem with the start times.

23Wilkie wrote back that day advising the applicant that the “meeting times are at the discretion of the Board of Directors” and suggesting that she address her problem with the start time with the Board. He asked her whether it would be “a consideration for [them] to meet with Wayne Thomson the Chair of Holdco to discuss further.”

24I would note, parenthetically, that the applicant stated in cross-examination that she had not noticed that at the bottom of Thomson’s letter to the Board, there was an invitation to the individual members of the Board to speak with him directly if they had questions or concerns. She did not otherwise think to speak to Thomson, a fellow Councillor, at that time because she perceived that relations between them were frosty over a position she had recently taken at Council.

25The applicant responded to Wilkie’s email that a meeting between the three of them might prove difficult as the Christmas holidays were about to begin and her daughter would be off school. She asked him whether it would be more convenient for Wilkie to meet with Thomson without her.

26Wilkie next wrote to the applicant on December 24, 2012 saying that he would speak to Thomson in the New Year to see if the meeting time could be changed. He also suggested that perhaps they could find some arrangement for her daughter at the NPEI offices (he had earlier rejected this option as being a health and safety concern) and suggested she might also participate in the Board meetings by phone.

27The applicant responded that day by rejecting his proposed alternative arrangements and saying that her preferred “accommodation” would be a later start time (preferably 4:30). She also included quotes from a government document about constructive dismissal vis-à-vis the Employment Standards Act and from an Ontario Human Rights Commission policy paper on the duty to accommodate.

28Wilkie did not respond to the applicant after the holidays, and testified that he could not recall discussing a later start time for the February 19, 2013 meeting with Thomson as he had promised he would do. The applicant wrote to him on February 6, 2013 saying that she thought she would be able to make the February 19, 2013 meeting date, although she was “not 100% certain.”

29Wilkie wrote the following to her on February 7, 2013: “I am sorry but I tried. The start time is at the call of the chair. Some corporate boards allow members to call in. If you are going to have difficulty give me a call.” The applicant responded that day by saying that calling in would not work as she would be driving, at the school and then driving again in the period between 3:30 and 4:30 p.m. The applicant also said she might have to file a complaint with the Tribunal.

30Four days later, on February 11, 2013, the applicant wrote to Wilkie to say she had filed her Application with the Tribunal, and suggested that he advise the Board members so they were aware of the complaint when they discussed the proposed meeting schedule at the February meeting.

31The applicant wrote a final email to Wilkie on February 19, 2013 to say that she could attend the meeting that day (which was still scheduled for 3:30 p.m.) as her spouse was available to do the pick-up. She testified that her spouse had scheduled a dentist’s appointment for 3:00 p.m. that day, which she only learned about on the morning of. He was quite upset at having to cancel the appointment at the last minute.

32The other thing of note in that February 19, 2013 email to Wilkie, is that the applicant advised him that she may have to leave the Board meeting early because she had another board meeting (relating to her Council work) at 5:00 p.m. In fact, she was able to attend the full February 19, 2013 meeting, which ended at 4:53 p.m.

33At that meeting, the applicant moved to have subsequent Board meetings start at 4:30, but could not get another Board director to second her motion. The minutes of that meeting state that one of the directors pointed out that the directors sit on other boards, some of which start at 5:00 p.m. on the days of the HOLDCO meetings. Two directors suggested that there is a phone-in option for those who are not able to attend. Ultimately, the Board carried a motion to move the meeting times to 4:00 p.m. from the proposed 3:30 p.m. start time.

34All Board meetings held subsequent to this meeting have started at 4:00 p.m. The applicant testified that, with the exception of one meeting she missed because she was on holiday, she has been in attendance at all the meetings since. She provided an email exchange between her and the parent of a school friend of her daughter’s, showing that she had to ask this woman to pick up her daughter from school on the afternoons of the September, October and November 2013 Board meetings as her spouse was working those times.

35The applicant also testified that she has felt isolated on the Board since this issue arose. In the fall of 2013, Bullet News, an online news service in Niagara, published a series of articles (the versions provided to the Tribunal are undated) in which the applicant’s 2012 attendance record was disclosed (although incorrectly, the articles referred to her missing six meetings). The applicant explained that the disclosure of this information would have had to have come from either a Board director or officer of HOLDCO as attendance records for the Board are not public.

36The series of Bullet News articles was followed by an article in the Niagara Falls Review on December 2, 2013, which discussed the applicant’s Application to this Tribunal as well as her attendance record. The applicant was able to print off follow-up, on-line reaction to these articles. The gist of this reaction was that those responding felt that she should not have “taken money” for meetings she had not attended.

Decision and analysis

Is this Dispute With Respect to Employment?

37The applicant is alleging discrimination with respect to employment because of her family status. Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

38The respondent has argued that the applicant was not in any kind of employment relationship with it and, hence, the allegations of adverse treatment are not “with respect to employment.” In contrast, the applicant takes the position that the respondent was, in effect, her employer, that the remuneration she received was employment income, and that the decision about when to start the Board meetings was, therefore, with respect to her employment.

39From the testimony and documents proffered by the parties to this Application, what we know about this particular board is as follows:

• Council members are automatically directors of HOLDCO;
• The respondent did not have the authority to remove the directors from their position with the Board; this decision rested with Niagara Falls Council;
• If a director is removed (typically, if not exclusively, by stepping down as a member of Niagara Falls Council), no Record of Employment is issued and they are not eligible to receive Employment Insurance;
• No work is done by the applicant (or other director) for HOLDCO other than board business;
• Indeed, HOLDCO is a shell corporation, and has no staff that undertake its business;
• The Board determines for itself how often it meets, and what time its meetings will start.
• Directors are paid remuneration by way of a four times a year honoraria totalling $4,800;
• It is not clear who set this remuneration, but it has existed at this level for several years;
• The applicant said she brought a motion to have that level lowered, from $4,800 to $1,500 but it did not pass;
• A T4 is issued for this money and the applicant includes it on her tax return as “employment income;” and
• This remuneration is not tied to attendance at meetings.

40The Employment Standards Act, 2000, S.O. 2000, c. 41 does not apply to “directors of corporations” and elected officials (s. 3(5)), but the mere fact that a class of individuals is exempted from that Act does not definitively determine the question of whether an employment relationship exists for the purpose of human rights legislation.

41The parties were not able to point to any human rights cases that discuss whether a director is in an employment relationship with the organization on whose board he or she sits.

42Although I was able to find no jurisprudence directly on point, the Supreme Court of Canada recently articulated principles applicable to this case, when it addressed the issue of whether an equity partner in a law firm is in an employment relationship for the purposes of the British Columbia Human Rights Code, R.S.B.C. 1996, c. 210, (“BC Code”): McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 (“McCormick”).

43In determining this issue, the SCC formulated the following test at para. 23:

Deciding who is in an employment relationship for the purposes of the Code means, in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of the worker. In other words, the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations?

44Applying that test of “control and dependency,” the Court in McCormick found that the partnership at issue was one in which the individual partner had a considerable degree of control over his or her working conditions. Indeed, at para. 33, the Court held:

In other words, the control over workplace conditions and remunerations is with the partners who form the partnership. In most cases, therefore, partners are not employees of the partnership, they are, collectively, the employer.

45In finding that this relationship was not an employment relationship subject to the BC Code, the Court relied on, among other things, the fact that Mr. McCormick was entitled (as an equity partner) to vote on the very retirement policy he was now challenging when it came into existence.

46There is no reason to think that the Court’s reasoning in McCormick is inapplicable to Ontario by virtue of some difference in the legislative provisions of the two jurisdictions. The protection against discrimination in employment found in section 13 (1) of the BC Code (“A person must not …discriminate against a person regarding employment or any term or condition of employment because of…”) is not materially different from the protection found in s. 5(1) of the Ontario Code (“Every person has a right to equal treatment with respect to employment without discrimination because of…”).

47McCormick would suggest that the mere fact that the respondent in this Application remunerated the applicant for sitting on its Board of Directors is not sufficient to put it in an employment relationship with her. Significantly, the applicant took the position that this remuneration was not dependent on her attending meetings, but was provided, in part, because she assumed the liability of the respondent, a factor that points to her being part of, rather than an employee of, the organization: see para. 26, McCormick.

48At the centre of the applicant’s dispute with the respondent is the setting of the time at which the Board meetings started. The Board minutes reflect that ultimately, it was the Board which determined this issue. The applicant had an opportunity, not only to vote on the resolution that set the start time (as one of nine), but also to put forth an alternative resolution.

49Unlike most employees, the applicant had a great deal of control over the conditions in which she operated as a director. The respondent appeared to have had very little, if any, control over her (or any other director’s) remuneration or removal from the Board. Hers was not a relationship of “dependency.”

50In light of this, I am unable to find that the applicant was in an employment relationship within the meaning of the Code, and would dismiss her Application on this basis.

Has the Applicant Made Out a Prima Facie Case of Discrimination on the Basis of Family Status?

51Family status is defined in s. 10(1) of the Code as “the status of being in a parent and child relationship.” The applicant argues that she experienced discrimination because her childcare responsibilities as a mother of a (then) six-year old child conflicted with the requirement that she attend the respondent Board meetings at 3:30 or even 4:00 p.m.

52The attendance requirement at those times is not direct discrimination on the basis of family status but could constitute constructive discrimination on that ground. The prohibition against constructive discrimination is found in s. 11 of the Code:

(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

53The Tribunal has held that the term family status includes substantive obligations owed by parents towards their children (childcare) and, indeed, adult children towards their parents (eldercare): Devaney v. ZRV Holdings Limited., 2012 HRTO 1590; Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233; and McDonald v. Mid-Huron Roofing, 2009 HRTO 1306. The issue of to what degree childcare obligations are included in the term family status has recently been addressed at length by the Federal Court of Appeal in Attorney General of Canada v. Johnstone, 2014 FCA 110 (“Johnstone”) at paras. 68 - 69:

… the precise types of childcare activities that are contemplated by the prohibited ground of family status need to be carefully considered. Prohibited grounds of discrimination generally address immutable or constructively immutable personal characteristics, and the types of childcare needs which are contemplated under family status must therefore be those which have an immutable or constructively immutable characteristic.

It is also important not to trivialize human rights legislation by extending human rights protection to personal family choices, such as participation of children in dance classes, sports events like hockey tournaments, and similar voluntary activities. …

54Ultimately, the FCA distinguished those childcare activities that fall under family status, from those which do not, on the basis that only those activities that engage a parent’s legal responsibility to a child are protected (see paras. 70 - 71).

55Turning then to the issue of what constitutes a prima facie case, the Court found, at para. 93:

I conclude from this analysis that in order to make out a prima facie case where workplace discrimination on the prohibited ground of family status resulting from childcare is alleged, the individual advancing the claim must show (i) that a child is under his or her supervision; (ii) that the childcare obligation at issue engages the individual’s legal responsibility for the child, as opposed to personal choice; (iii) that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible, (iv) that the impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfilment of the childcare obligation.

56While the decision in Johnstone is not binding, I find the reasoning set out above persuasive and adopt it.

57There is no question that, as mother of a six-year old child, the applicant has established that she met the first criterion. However, it is not entirely clear that the remaining criteria have been met.

58The applicant testified that she had made the choice to enroll her daughter in the same private school that her elder daughter had previously attended. This school was in another community, some 20 minutes away by car from the applicant’s home. While there is no doubt that schooling engages an individual’s legal responsibilities, it is a somewhat complicated factor to assess in this case because in some ways it also engaged elements of personal choice, that in turn limited options for the pick-up and drop off of the applicant’s child.

59Ultimately, in this case, the issue of choice of school was not a determinative factor and it is accordingly unnecessary to assess it. This is because the applicant also made a choice to not enroll her daughter in after school care, but to pick her up from school at the end of the school day. The applicant explained that this was because she wanted, as much as possible, to replicate the same educational experience enjoyed by her elder daughter. Also her younger daughter had apparently expressed some reluctance to attend the after-school program.

60While these decisions may be understandable, it is difficult to see them (the latter ones in particular) as resulting from the applicant’s legal obligation to her daughter as opposed to personal choices. Even if this is not the case, the applicant led no evidence that she even considered, let alone made reasonable efforts to find, alternative solutions to the dilemma she faced when the meeting time for the Board meeting conflicted with the school’s normal pick-up time. The email exchanges she had with Forcier and Wilkie concerning the November 2012 and February 2013 meeting suggest that the applicant felt she had no obligation to make alternative arrangements so she could attend the meeting (other than asking her spouse to do the pick-up). Her response instead was to send her regrets or ask that the meeting time be changed.

61This, in my view, raises a critical problem for the applicant in terms of establishing a prima facie case of discrimination, which is that in order to establish discrimination on the prohibited ground of family status resulting from childcare, the applicant must establish, “that he or she has made reasonable efforts to meet those childcare obligations through reasonable alternative solutions, and that no such alternative solution is reasonably accessible….”

62On a more fundamental level, the applicant has failed to establish that the early start time (the “workplace rule”) had an adverse impact on her on the basis of her status of being a parent. That is, on the facts established at the hearing, the applicant has failed to demonstrate that the respondent’s decision to start the meetings at 3:30 or 4:00 p.m. had the effect of excluding her from participating in the meetings. She testified that until 2012 she was able to attend the meetings and there was no issue with what was generally a 4:00 p.m. start time. She missed the first two meetings of 2012 for reasons entirely unrelated to her responsibilities as a parent.

63While the applicant stated that she was unable to attend the November 2012 Board meeting because the early start time conflicted with her responsibility to pick up her daughter from her school, the applicant’s later emails to Forcier make it clear that she would not have been able to come to a meeting that started at 4:30; the time she indicated would not pose a conflict with her parental obligations. That is, even after picking up her daughter, the applicant felt an obligation to drive her daughter to her swim lesson, and by her own estimates, would not have been able to arrive at the meeting until 5:45 or 6:00 p.m. This is significant because in my view swim lessons clearly fall into the category of personal choice rather than legal responsibility.

64In 2013, the applicant testified that she was able to attend all the meetings, but the one held in June which conflicted with her vacation schedule. Despite her protest concerning the 3:30 start time for the February 2013 meeting, the applicant was able to attend it. Indeed, she indicated that she had another obligation at 5:00 and would have to leave early. In other words, had the Board acquiesced to her request to start the meetings at 4:30, she would not have been able to attend the meeting (or more than a few minutes of it) because of the conflict with this other obligation.

65While I do not doubt the sincerity of the concern expressed by the applicant in late 2012 and early 2013 about the potential conflict between her responsibility to her daughter and the early commencement of the Board meetings (resulting in the filing of this Application), this concern remained theoretical. Ultimately, even when her spouse was not available to pick up her daughter from school, she was able to arrange for someone else to do this.

66For all of the above reasons, the applicant has failed to make out a prima facie case of family status discrimination. It is unnecessary, therefore, to consider whether the requirement was reasonable and bona fide, or whether the needs of the applicant could have been accommodated without undue hardship.

Was the Applicant Reprised Against for Filing Her Application?

67The applicant has also alleged that she was reprised against for filing this Application with the Tribunal. The prohibition against reprisal is found in s. 8 of the Code

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

68The applicant has alleged, and the respondent witnesses have not refuted, that the only persons with knowledge of the attendance records for HOLDCO Board meetings were the directors and officers of the respondent. The applicant, however, is not able to point to a particular person and allege that he or she disclosed information about her attendance at the Board meetings in 2012 to the press. Initially she thought that Thomson may have been responsible, based on a statement he had made in Council, but after hearing his testimony, accepted that it was not him. While no one has taken responsibility for the leak of this information to the press, and there is no information from which I can discern the identity of the person or persons, I am prepared to infer that it was someone from within the respondent organization.

69There are, however, three issues on which I cannot make findings and require further submissions from the parties. The first issue is whether this conduct (i.e., leaking information of an embarrassing nature to the press) constitutes reprisal for filing an Application. Assuming that it is reprisal under the Code, the second issue is whether the respondent corporation is liable for the acts of either its officers or directors. The parties may wish to make submissions on s. 46.3 of the Code, as well as the general law concerning corporate liability. Finally, assuming that I find that the respondent is liable for the reprisal, what is the appropriate remedy, given that the applicant did not request monetary compensation in her Application.

Order

70The portion of the Application alleging discrimination in employment on the basis of family status is dismissed.

71With respect to the portion of the amended Application alleging reprisal, the Tribunal directs the parties to file further submissions within 28 days of the date of this Decision, on the following three issues:

a. Whether the conduct alleged constitutes reprisal for filing an Application;

b. Whether, in the circumstances of this case, the respondent corporation is liable for the conduct of either its officers or directors.

c. What is the appropriate remedy for the alleged reprisal, given that the applicant has not requested monetary compensation in her Application.

72Unless either party advises they wish to make oral submissions on these remaining issues, I shall determine them following consideration of any further written submissions, received in accordance with the schedule above.