Cieslinski v. Aon Reed Stenhouse Inc., 2014 HRTO 167

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Monika Cieslinski

Applicant

-and-

Aon Reed Stenhouse Inc., James Millard, Joseph Cuscianna and Liz Niederkorn

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: February 5, 2014

Citation: 2014 HRTO 167

Indexed as: Cieslinski v. Aon Reed Stenhouse Inc.

WRITTEN SUBMISSIONS

Monika Cieslinski, Applicant

Malcom MacKillop, Counsel

Aon Reed Stenhouse Inc., James Millard, Joseph Cuscianna and Liz Niederkorn, Respondents

Matthew Certosimo, Counsel

1This Interim Decision deals with a request by the respondents to remove James Millard, Joseph Cuscianna and Liz Niederkorn as personal respondents to this Application. As the parties now consent to the removal of James Millard, these reasons address whether the latter two personal respondents should be removed.

background

2The applicant worked for the corporate respondent, initially as a Recruiter and then as a Recruitment Specialist, from 2004 to her termination on March 19, 2013. The respondent Joseph Cuscianna was the applicant’s immediate supervisor and reported to the respondent Liz Niederkorn. He no longer works for the corporate respondent. Ms. Niederkorn is the corporate respondent’s Vice President of Global Talent Acquisition.

3The applicant alleges that she performed well as a Recruitment Specialist but was underpaid compared to her colleagues. She sought a salary increase and maintains that she was initially promised much more than she was ultimately offered. She also alleges that in the midst of exchanges with Mr. Cuscianna about her salary increase, which stretched over a period of about three months, she advised him that she was pregnant and would be going on maternity leave.

4The applicant maintains that Mr. Cuscianna’s attitude towards her changed on receiving this news and he became abrupt, assigned her more work and treated her with less respect. At the end of January 2013 she submitted a request for maternity leave beginning on August 1, 2013, and ending a year later. In February of 2013 she was told that her salary increase would be limited to 1.5%. On March 1, 2013, she had a performance review meeting with Mr. Cuscianna that she says was, on balance, favourable. Later that month she had a meeting with Mr. Cuscianna and Mr. Millard where she was told that her employment was being terminated due to a restructuring of the corporate respondent.

5The applicant then filed this Application alleging discrimination in employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.

6The respondents deny any discrimination. In their view the applicant’s performance was average at best and there were concerns with how she had handled certain client files. They maintain that the restructuring was genuine, that other employees saw their employment terminated around this time and that the applicant’s pregnancy was not a factor in either of the decisions to award her a lesser salary increase than she sought or to terminate her employment.

positions of the parties on the request

7The respondents argue that Mr. Cuscianna and Ms. Niederkorn should be removed from the Application as the corporate respondent is alleged to be liable for the same conduct that the personal respondents are said to have engaged in. Further, the corporate respondent acknowledges vicarious liability and has the capacity to remedy any breach of the Code that the Tribunal might find.

8They argue that Ms. Niederkorn had no direct dealings with the applicant, but was ultimately responsible for approving any salary increase and directing Mr. Cuscianna to reduce the size of his staff. Thus they maintain that she was acting within the scope of her employment and there is nothing about her conduct that would justify exposing her to any personal liability.

9Similarly, Mr. Cuscianna is said to have acted in the scope of his employment by setting the level of the applicant’s salary increase and by implementing a part of the corporate restructuring through the decision to terminate the applicant’s employment.

10Finally, the respondents argue that removing the personal respondents does not impair the applicant from advancing her Application or recovering any remedies, should she succeed at a hearing.

11The applicant takes no issue with the fact that the corporate respondent is alleged to be liable for the same conduct as the personal respondents nor that it can be held vicariously liable.

12However, she argues that the fact that Mr. Cuscianna is no longer an employee of the corporate respondent means that the corporate respondent will have difficulty locating and gathering information from him, and that this in turn will impair its ability to respond to the applicant’s allegations. She also suggests that his termination is in some way linked to this Application, insinuating that it may be an indirect attempt by the corporate respondent to prevent him from testifying. Finally, in relation to Mr. Cuscianna’s departure from the company, the applicant submits that any public interest remedy the Tribunal might award in respect of him (such as requiring him to undergo human rights training) could not be enforced by the corporate respondent as he no longer is an employee.

13The applicant also argues that the conduct of both Ms. Niederkorn and Mr. Cuscianna was discriminatory and contrary to the policies of the corporate respondent. Therefore there are compelling reasons to maintain them as personal respondents.

analysis

14Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 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.

15The Tribunal further 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:

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

2. 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?

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

4. 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?

5. 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.

16The positions of the parties diverge on the applicability of the last three of the five factors set out in Persaud.

17In relation to the fact that Mr. Cuscianna is no longer employed by the corporate respondent, any difficulty that the corporate respondent may have in locating him and obtaining information from him is the corporate respondent’s problem, not the applicant’s. This not a situation where the interests of the corporate respondent and the personal respondent appear to diverge. Rather, the position of the corporate respondent is that none of Mr. Cuscianna’s actions were discriminatory (and the applicant has filed no Reply to challenge that position). If, as the applicant apparently fears, Mr. Cuscianna does not testify I fail to see how this would harm the applicant’s case. Based on the materials before me, the applicant’s suggestion that the corporate respondent went to the lengths of terminating his employment in order to prevent him from giving evidence appears to have no grounding at all in fact.

18There is a rationale for maintaining Mr. Cuscianna as a personal respondent, and that is in relation to the remedies the Tribunal might order.

19If the applicant succeeds at a hearing and the Tribunal decides to order a public interest remedy requiring Mr. Cuscianna to do such things as pursue training in human rights, then it has no authority to do so unless he is maintained as a personal respondent. While the Tribunal might order the corporate respondent and some of its employees to undergo training, as a former employee Mr. Cuscianna would be beyond the reach of the corporate respondent in terms of implementing this remedy. For this reason only he should be maintained as a personal respondent.

20I reject the applicant’s arguments that the alleged conduct of Ms. Niederkorn constitutes a compelling reason to maintain her as a personal respondent. She had no direct dealings with the applicant and her alleged conduct does not appear to be of a nature that would justify making an award of an individual remedy against her. Further, there is no apparent prejudice to the applicant in removing her as a personal respondent. For these reasons it is appropriate to remove her as a personal respondent.

order

21The respondents’ request is granted in part, as follows:

• On consent of the parties Mr. Millard is removed as a respondent;

• Mr. Cuscianna is maintained as a respondent;

• Ms. Niederkorn is removed as a respondent.

22The style of cause is amended accordingly.