Kalpakis v. Halton District School Board, 2014 HRTO 24

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bill Kalpakis Applicant

-and-

Halton District School Board Respondent

-and-

Canadian Union of Public Employees, Local 1011 Intervenor

A N D B E T W E E N:

Monika Lipa Applicant

-and-

Halton District School Board Respondent

-and-

Canadian Union of Public Employees, Local 1011 Intervenor

INTERIM DECISION

Adjudicator: Ruth Carey Date: January 7, 2014 Citation: 2014 HRTO 24 Indexed as: Kalpakis v. Halton District School Board

WRITTEN SUBMISSIONS

Bill Kalpakis and Monika Lipa, Applicants Shawn Weston, Representative

Halton District School Board, Liz MacCarthy, David Margetts and Ken Birtch, Respondents John-Paul Alexandrowicz, Counsel

Canadian Union of Public Employees, Local 1011, Intervenor Elizabeth Nurse, Counsel

1These two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), allege discrimination with respect to employment because of creed and association with a person identified by a protected ground. The applicants are spouses who were both working for the respondent, Halton District School Board (“the Board’), in the spring of 2013. The Applications concern the applicants’ requests to be given time off work with pay to celebrate Good Friday in the Greek Orthodox calendar on May 3, 2013.

2This Interim Decision is being issued to address a number of requests filed by the parties.

The Requests to Amend and Consolidate

3On November 21, 2013, the applicant, Monika Lipa, filed a Request for an Order During Proceedings (“RFOP”) requesting: an order consolidating her Application in Tribunal file 2013-15688-I with her spouse’s contained in Tribunal file 2013-14447-I; and an order amending the Application to add creed as a ground and change the answer “no” to “yes” in response to question A10 which asks “is your Application about a workplace policy?”.

4On December 6, 2013, the respondents filed and delivered a Response to a Request for an Order (“RRO”) consenting to the RFOP in its entirety.

5As the two Applications involve the same issue, events, and respondent parties, it is administratively efficient to consolidate them for the purposes of hearing and this aspect of the RFOP shall be granted. This means that the Application in file 2013-15688-I will be heard on July 7, 2014, the date already scheduled for the hearing of Application 2013-14447-I; mediation for 2013-15688-I will not be scheduled; and the timelines for disclosure set out in the Notice of Rescheduled Hearing issued on December 19, 2013, will apply to both Applications.

6With respect to the requested amendments, they are necessary and timely. Given these factors and the respondents’ consent, this part of the RFOP shall also be granted.

The Requests to Intervene

7On June 28, 2013, the Tribunal received a Request to Intervene from the Canadian Union of Public Employees and its Local 1011 (“the Union”) with respect to Application number 2013-14447-I. On December 10, 2013 it received a Request to Intervene from the Union with respect to Application number 2013-15688-I. The Union is a party to a collective agreement with the Board. At the relevant time both applicants were members of the Union’s bargaining unit. Neither the applicants nor the respondents filed any response to the Union’s intervention requests.

8As stated in Boyce v. Toronto Community Housing Corporation, 2009 HRTO 131, at para. 13:

A union or association nearly always has an interest in a human rights application brought by an employee in a bargaining unit it represents when the application alleges discrimination in employment. Absent exceptional circumstances, the applicant’s bargaining agent will be granted intervention status in Tribunal proceedings where it requests it.

9As there are no exceptional circumstances here indicating the intervention request is inappropriate, the Union’s requests to intervene are granted. The extent of the Union’s participation in the hearing of the Applications shall be determined by the adjudicator presiding over the hearing.

The Requests to Remove the Personal Respondents as Parties

10The respondents have filed Responses to both Applications. The Responses specifically ask that the personal respondents be removed as parties to the Applications and provide full submissions on the issue.

11Normally such a request is made by respondents’ filing a Request for Order During Proceedings in Form 10. However, here the applicants filed and delivered Replies which respond to the requests to remove the personal respondents. The most recent of these Replies contains fulsome submissions on the issue. As a result, it is appropriate, efficient, and proportional to address the request to remove the personal respondents without inviting further submissions or requiring the parties to file Forms 10 and 11.

12According to the Applications all of the named personal respondents are employees of the Board acting at all times within the scope of their employment. Liz MacCarthy is the Manager of Human Resources. Ken Birtch was the applicant, Bill Kalpakis’s, Field Supervisor during the period in question; and David Margetts was the applicant, Monika Lipa’s, Field Supervisor. All three individuals communicated with the applicants and were involved in the decision that is the subject of the Applications.

13The Applications allege that the applicants requested as a paid day off work May 3, 2013, to celebrate Good Friday in the Greek Orthodox calendar. These requests were granted but with the condition that the applicants’ priest had to confirm in writing they attended services on the day in question. Apparently this is a policy or practice adopted by the Board whenever an employee asks for a day off for a religious celebration where the employee has not requested that day off in previous years. When written confirmation is received it is placed in the employee’s personnel file and similar requests in future years are approved without the need for any further documentation. According to the applicants, their priest was willing to speak with the employer over the telephone to confirm their attendance, but he was not willing to provide a letter. As a result, the applicants were permitted to take the day off but were not paid for it.

14The Reply filed with respect to Application 2013-14447-I simply asks the Tribunal “to have their input on whether or not to have the Personal Respondents included in the Application”. The Reply filed with respect to Application 2013-15688-I provides detailed submissions as to the issue.

15With respect to the personal respondent, Ken Birtch, that Reply states the applicants take no position with respect to whether or not he should be removed as a respondent party.

16With respect to the personal respondent, David Margetts, the Reply states he should be retained as a personal respondent because he may have “orchestrated” the events that form the basis of the Applications, he was “disrespectful”, and he may have acted as he did to retaliate against one or more of the applicants because of non-Code related grievances and complaints made about him in the past. The Reply also says:

…Ms. Lipa would like to use these human rights proceedings, and any finding of liability against Mr. Dave Magretts, in future proceedings in front of an Arbitrator should she eventually be wrongfully terminated from the Board. As a result, Ms. Lipa will be deeply prejudiced should Mr. Dave Magretts be removed as a party to the Application as he could no longer face liability for his conduct against Ms. Lipa.

17With respect to Liz MacCarthy, the Reply offers similar reasons as to why she should remain as a personal respondent: her behaviour was central to what happened; some of her actions were “malicious”; and the applicants are considering a complaint to her professional body, the Human Resources Professional Association – they argue that if she no longer faces personal liability under the Code, that professional body “may not find any professional misconduct”.

18In addition, the Reply states that as the Board is not a regular corporate body, enforcement against it of a monetary remedy might be problematic. It also says that public interest remedies ought to be awarded against the personal respondents in part to ensure that other employees of the Board do not face similar situations.

19Pursuant to Rule 1.7(b) of the Tribunal’s Rules of Practice, the Tribunal may remove or add parties “to provide for the fair, just and expeditious resolution of any matter before it”.

20The Tribunal’s Practice Direction on Naming Respondents explains the Tribunal’s general concern about naming personal respondents in addition to an organizational one as follows:

Where there is an organizational respondent who may be held liable for the alleged infringement and is in a position to satisfy any remedies ordered, the naming of individual respondents is generally discouraged. The HRTO has noted in its decisions that the unnecessary naming of individuals, whose conduct is not a central issue in the alleged harassment or discrimination, adds to the complexity of the case and can act as a roadblock to resolution of the dispute…

21Section 46.3 of the Code says:

(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

(2) At the request of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization, the Tribunal in its decision shall make known whether or not, in its opinion, an act or thing done or omitted to be done by an officer, official, employee or agent was done or omitted to be done with or without the authority or acquiescence of the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization, and the opinion does not affect the application of subsection (1).

22In general what this provision means is that in most cases an employer is liable for the actions of its employees acting in the course of their employment. This is one of the reasons why it is often unnecessary to name as respondents the employees whose behaviour is the subject of an application.

23In Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 4, the Tribunal says that in exercising the power to remove respondents, it may want to have regard to the principles the Tribunal applies when considering adding new respondents. With respect to adding respondents, in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, the Tribunal states at para 42:

… 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.

24In Persaud, supra, at para. 5, the Tribunal says:

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.

25In the circumstances of these Applications, there is a corporate respondent that is alleged to be liable for the same conduct. Although the applicants’ Reply suggests the Board is not a regular corporation and there may be enforcement problems as against it, this concern is not based in fact or law. Section 58.5(1) of the Education Act, R.S.0 1990, c. E2, says:

Every district school board is a corporation and has all the powers and shall perform all the duties that are conferred or imposed on it under this or any other Act.

26There is no issue raised as to the Board’s deemed or vicarious liability for the conduct of the personal respondents. Nor is there any issue as to the ability of the Board to respond to or remedy the alleged Code infringement. As the basis of the Applications is the enforcement of a Board-wide policy or practice, the behaviour of the personal respondents is not a central issue. Neither Application asks for a public interest or other remedy as against the individual personal respondents.

27With respect to the personal respondent, David Magretts, the applicants argue removing him as a personal respondent would be prejudicial because his involvement in the events complained of might have been motivated by previous non-Code related complaints and grievances made by one or more of the applicants. As these previous complaints are non-Code related it is not clear to me they are relevant. Further, it is a well settled principle in human rights law that an applicant does not have to establish an intention to discriminate or a motivation to do so. As stated in Smith v. Ontario (Human Rights Commission), 2005 CanLII 2811 (ON SCDC), at para. 23:

… motivation or knowledge is not in issue, only the effect of the discrimination on the complainant is in issue.

28With respect to the argument that it is prejudicial to the applicants to remove the personal respondents because there may be future legal proceedings involving them where findings of liability against them might be useful, I do not believe such an argument is appropriate. There is apparently no dispute that the personal respondents were acting in the course of their employment and enforcing an existing policy or practice of the Board. If a finding is made that the Board breached the Code through the actions of the personal respondents, that has the same meaning and weight whether the personal respondents are held jointly liable or not.

29In their submissions, the applicants rely on the Divisional Court’s decision in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876, for the proposition that the fact that a corporation may be jointly and severally liable with employee respondents is no reason to insulate the employees from liability. I do not disagree with this proposition but Farris, supra, was not a case where the issue was whether or not to remove personal respondents; rather the issue in that case was whether or not some of the personal respondents should have been found jointly and severally liable given that the corporate respondent was no longer operable and the applicant was essentially left without a remedy without such an order. Therefore, I do not believe Farris, supra, is relevant.

30Given all of the above, I am satisfied that it would be fair and just to grant the respondents’ request to remove the personal respondents as parties and doing so will contribute to the expeditious resolution of these Applications. The respondents’ request shall be granted. I have amended the style of cause accordingly.

The Request to Bifurcate

31Included in the Reply in Application 2013-15688-I is a request for an order that the hearing be bifurcated to “examine the issue of whether the Board, in general, has inconsistently imposed the strict requirements of their faith leave process onto certain staff members of certain faiths…”

32If the applicants wish to pursue this request they should file a Request for Order During Proceedings in Form 10, provide a cogent rationale and a clear statement as to the order requested. This will give the respondents and the Union an opportunity to respond if they wish to do so and provide the Tribunal with the information it needs to consider the request. Prior to doing so the applicants may wish to review examples of Tribunal decisions that discuss the factors that are sometimes considered when bifurcation is requested; for example see, Persaud v. Toronto District School Board, 2008 HRTO 25, and Carasco v. University of Windsor, 2011 HRTO 1931.

DECISION

33The Tribunal makes the following orders:

a. Applications 2013-14447-I and 2013-15688-I are consolidated. This means that unless the Tribunal orders otherwise the Application in file 2013-15688-I will be heard on July 7, 2014, the date already scheduled for the hearing of Application 2013-14447-I; mediation for 2013-15688-I will not be scheduled; and the timelines for disclosure set out in the Notice of Rescheduled Hearing issued on December 19, 2013, will apply to both Applications.

b. The Application 2013-15688-I is amended to include creed as a ground and the answer in response to question A10 which asks “is your Application about a workplace policy” is changed from “no” to “yes”.

c. The requests to intervene by the Intervenor are granted.

d. The personal respondents are removed as parties to the Applications.

34I am not seized.