Tracy Cronsberry v. Revera Long Term Care, 2014 HRTO 1623

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tracy Cronsberry

Applicant

-and-

Revera Long Term Care, Revera Baywoods Place, Revera Inc.,

Compass Group Canada Inc., and Pat Caricato

Respondents

-and-

Unifor

Intervenor

INTERIM DECISION

Adjudicator: David Muir

Date: November 4, 2014

Citation: 2014 HRTO 1623

Indexed as: Cronsberry v. Revera Long Term Care

WRITTEN SUBMISSIONS

Tracy Cronsberry, Applicant

Jo-Anne Seamon, Counsel

Revera Long Term Care, Revera Baywoods Place, and Revera Inc., Respondents

Erin Porter, Representative

Pat Caricato, Respondent

Gavin Clingbine, Representative

Compass Group Canada Inc., Respondent

No one appearing

Unifor, Intervenor

No one appearing

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondents Revera Long Term Care, Revera Baywoods Place, and Revera Inc., (“Revera”) and Pat Caricato have filed Responses (Form 2).

3On August 27, 2014, the respondent Caricato filed a Request for Order During Proceeding (“Request”) seeking the removal of the respondent Mr. Caricato from the Application because he was not an employee of Revera and he did not make decisions about the applicant for her employer Revera. Mr. Caricato asserted that he was an employee of Compass. The applicant opposed this Request on the basis that so far as she was concerned Mr. Caricato was her supervisor and was involved in the management of her employment. Revera argued that Mr. Caricato was not its employee and it cannot be liable for his actions. In Revera’s submission, it would not be appropriate to remove Mr. Caricato from the Application.

4On October 14, 2014, the applicant field a Request seeking to add Compass Group Canada Inc. (“Compass”) on the basis that it appears that Compass has a services contract with Revera and that Mr. Caricato was its representative at the applicant’s workplace. The applicant notes that Revera agrees that Mr. Caricato was not its employee and that it argues that it cannot be liable for his actions. The applicant does not accept that Revera cannot be liable for Mr. Caricato’s actions but notes that the Tribunal’s case law is not well developed on this point and relies on this as a reason to add Mr. Caricato’s employer as a respondent.

5No respondent responded to the applicant’s Request although all were given an opportunity to do so.

6The applicant’s Request is granted and the respondent mr. Caricato’s request is denied at this stage. I agree with the applicant that it would not be appropriate to remove the respondent Mr. Caricato at this stage given the uncertainty about how liability might be apportioned in the event that a violation of the Code is found. It may be that Mr. Caricato was acting as agent for Revera but that cannot be determined at this stage of the proceeding. On the other hand, as the employer of the respondent Mr. Caricato it is appropriate to add Compass as a respondent to the Application because there are allegations made against the individual respondent for which this organizational respondent may be liable.

7The applicant and Revera respondents have agreed to mediation which is scheduled to take place on December 8, 2014. In order to ensure the orderly adjudication of this Application, I direct the respondent Compass to deliver and file its Response to the Application within 14 days of the date of this Interim Decision, whether or not Compass agrees to attend mediation on December 8, 2014.