Angelica Tesseris v. Pellark Dental Centre, Wharncliffe Walk-In Clinic Ltd., Dr. Derek Chiu and Kim Sanzosti, 2014 CanLII 2450

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angelica Tesseris Applicant

-and-

Pellark Dental Centre, Wharncliffe Walk-In Clinic Ltd., Dr. Derek Chiu and Kim Sanzosti Respondents

-and-

College of Physicians and Surgeons of Ontario Intervenor

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: January 23, 2014 Citation: 2014 HRTO 101 Indexed as: Tesseris v. Pellark Dental Centre

APPEARANCES

Angelica Tesseris, Applicant Self-represented

Pellark Dental Centre and Kim Sanzosti, Respondents and Wharncliffe Walk-In Clinic Ltd. and Dr. Derek Chiu, Proposed Respondents Christopher Sinal, Counsel

College of Physicians and Surgeons, Intervenor Jessica Amey, Counsel

1This is an Application filed on April 25, 2013 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of ethnic origin, marital status and reprisal.

Background

2In the Application, the applicant describes her ethnic origin as Romanian and states that she is separated from her husband. The applicant states that over the last three years her job duties have shifted to bookkeeping, which she was not hired to do, and that new accounting rules have been implemented to assist the individual respondent in monitoring the applicant’s work. The applicant states that she recommended hiring an accountant, but was ignored. The applicant alleges that Dr. Derek Chiu, one of the owners of the organizational respondent, began treating the applicant poorly in or about September 2010 when she refused his request to prepare a statement against his business partner following a complaint. The applicant states that she complained to Dr. Chiu in May 2012 about workplace harassment, but no action was taken. Rather, the applicant alleges that the Dr. Chiu and the individual respondent, Ms. Sanzosti who was the office manager, began to conspire against her and harass her because she stood up for herself. The applicant states that she did not receive her share of a profit sharing arrangement in 2010 and 2011. The applicant alleges that the individual respondent began to spread rumours that the applicant was having an affair with Dr. Chiu’s business partner because she learned that the applicant was attending proceedings related to her separation from her husband, which damaged her reputation. Finally, the applicant alleged that Dr. Chiu and the individual respondent stated that the applicant’s English is inadequate during a hearing before the intervenor, College of Physicians and Surgeons of Ontario (the “College”).

3The respondents filed a Response in which they denied the applicant’s allegations. Specifically, the respondents state that Dr. Chiu did not ask the applicant to provide a statement against Dr. M., the co-owner, along with Dr. Chiu, of Wharncliffe Walk-In Clinic Ltd. (“Wharncliffe”) and Clinicare Walk-In (“Clinicare”). Rather, Dr. Chiu investigated an employee complaint against Dr. M. and the applicant volunteered to provide a statement to assist in the investigation. The respondents state that the applicant complained that the individual respondent treated her harshly because of concerns with the applicant’s work performance and wished to have no further contact with her. The respondents state that Dr. Chiu established protocols to ensure that there would be no further contact between the applicant and individual respondent. The respondents acknowledge that the applicant is a party to a profit-sharing agreement related to Clinicare, but state that Clinicare has operated at a loss at all material times. The respondents deny that the individual respondent engaged in any activity intended to damage the applicant’s reputation.

4The respondents also raised a number of preliminary issues as follows:

• That the individual respondent should be removed as a party to the Application;
• That portions of the Application should be dismissed for delay, pursuant to section 34(1) of the Code;
• That portions of the Application, to the extent that they are based on testimony given at a discipline hearing of the College, are statute barred, pursuant to section 36(3) of the Regulated Health Professions Act, 1991, 1991, S.O. 1991, c. 18 (the “RHPA”);
• That Wharncliffe is the proper organizational respondent to the Application; and,
• The respondents requested a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure because the Application should be dismissed, in whole or part, because the Application, or portions of it, have no reasonable prospect of success.

5In her Reply, the applicant alleges that the respondents committed further reprisals against her after she filed this Application. The applicant states that Dr. Chiu is the only person with access to the clinic website and that he changed the applicant’s password for her e-mail account and disconnected her cellular telephone after she filed the Application to the Tribunal. The applicant states that she is on a stress leave and that Dr. Chiu sent her threatening and harassing e-mail messages. The applicant states that she was unable to sleep or focus in these circumstances, which contributed to her being in a motor vehicle accident that destroyed her car and caused her to be hospitalized. The applicant states that after the accident she requested Dr. Chiu to provide an employment record to her insurance company, but he refused. The applicant states that Dr. M attempted to assist her, but did not have access to the required information and the individual respondent declined to provide it to him. As a result, the applicant was unable to receive insurance benefits or Employment Insurance benefits.

6The College sought intervenor status because it appeared that the Application was based, in part, on evidence given at a College disciplinary hearing regarding Dr. M. The College submitted that such evidence is inadmissible in proceedings before the Tribunal, pursuant to section 36(3) of the RHPA and that the College had an interest in ensuring that this statutory protection for witnesses before the College is maintained. The Tribunal granted the Request to Intervene in Tesseris v. Pellark Dental Practice, 2013 HRTO 1143.

7By Case Assessment Direction (“CAD”) dated July 2, 2013, the Tribunal granted the respondents’ request for summary hearing and ordered a summary hearing to determine whether the Tribunal should dismiss the Application, in whole or part, because there is no reasonable prospect that the Application or part of the Application will succeed or on the basis of delay. The Tribunal also directed the parties to address the other preliminary issues the respondents raised in the Response. On September 6, 2013, the applicant filed a Request for an Order During Proceedings in which she requested to add Dr. Chiu and Wharncliffe as respondents to the Application. The respondents responded to the Request on September 20, 2013. By CAD dated September 26, 2013, the Tribunal directed the parties to address this issue during the summary hearing. The Tribunal held the summary hearing by teleconference on October 2, 2013.

Reasonable Prospect of Success

The Applicant

8During the hearing the applicant confirmed that she did not intend to rely upon any evidence presented during the College disciplinary hearing regarding Dr. M. and stated that the issue of her English proficiency came up again following the College hearing. The applicant stated that Dr. Chiu removed her responsibility for preparing staff performance reviews because of language issues. The applicant submitted that Dr. Chiu did this because she is not Canadian and her first language is not English. The applicant submitted that the individual respondent discriminated against her because of marital status by spreading rumours about her to the effect that she was having an extramarital affair. The applicant noted that such rumours have circulated since 2010 and were included in another application filed by a co-worker, 2010-07354-I, in which the applicant is an individual respondent. The applicant submitted that the individual respondent spread this rumour because she was aware that the applicant was separating from her husband and dealing with custody issues.

9The applicant pointed to an e-mail message, dated May 12, 2012, to Dr. Chiu in which she advised Dr. Chiu that she felt harassed by him and the individual respondent because of the work-related information she required from her. In the message, the applicant also stated that she considered the individual respondent to be a bully who acted in an aggressive and intimidating manner with Dr. Chiu’s support. Despite her complaint, the applicant submitted that matters became worse in the workplace.

10The applicant submitted that Dr. Chiu changed her password to the organizational respondent’s e-mail system and cancelled her cellular telephone service. In that regard, the applicant produced e-mail messages, dated May 6, 2013 and May 26, 2013, to Dr. M where she advised him that she no longer has access to her work e-mail account and that her cellular telephone was disconnected. Regarding the cellular phone, the applicant reminded Dr. M. that the cellular phone provided by the organizational respondent was her only phone because she had been advised that she could use it for personal calls.

11The applicant stated that she saw her doctor on April 18, 2013 due to the stress she was experiencing and was advised to stay away from work for approximately one month. The applicant stated that Dr. Chiu contacted her by e-mail and text message every day after she went on leave, despite her requests to him to cease communications with her.

12The applicant submitted that after she commenced her leave, Dr. Chiu sent her e-mail and text messages every day regarding work, despite her request not to contact her. The applicant stated that the resulting stress caused her to be in a motor vehicle accident. The applicant stated that she asked the respondents to complete insurance forms for her and provide a Record of Employment, but this was not done and she was refused pay during her stress leave. The applicant pointed to an e-mail message from Dr. M., dated May 6, 2013, in which he advised that he had attempted to complete the applicant’s form, but did not have the information to do so. Dr. M. explained Dr. Chiu was not available; therefore, he sent the forms to his office through another employee because the individual respondent declined to provide the information, although it was available to her.

13The applicant stated that after she filed the Application, Dr. Chiu prohibited her from contacting him or other staff members. In that regard, the applicant pointed to an e-mail message in which Dr. Chiu directed the applicant to direct all correspondence to respondents’ counsel on all matters and to refrain from contacting him, his family, his dental practice and its staff, failing which he would have no choice, but to seek an alternate solution.

The Respondents

14The respondents acknowledged that the applicant was relieved of her responsibility for preparing performance reviews for staff, but denied that this decision was related to her proficiency in English. Rather, the respondents submitted that the applicant was relieved of these duties because the manner in which she performed them caused her to be drawn into conflict with staff. The respondents submitted that there was never a suggestion that the applicant’s language skills were an issue. The respondents also submitted that the organizational respondent informed the applicant of this decision in a letter that was evidence in the College disciplinary hearing and therefore cannot be produced in this proceeding since the applicant does not intend to rely on documents presented to the College’s disciplinary panel.

15The respondents also acknowledged that the organizational respondent suspended the applicant’s access to her e-mail account and her cellular phone. The respondents explained, however, that the applicant had commenced a medical leave of absence approximately two weeks prior to filing the Application. The e-mail account in question was the e-mail account the applicant used in her work for the organizational respondent and the organizational respondent also provided the cellular phone to the applicant to use in her employment duties. As the applicant indicated that she did not intend to work from home while on leave, the organizational respondent suspended her access to its e-mail system and her cellular phone service. The respondents submitted that these were normal operational decisions and the fact that they were made shortly after the applicant filed the Application was a coincidence.

16The respondents denied that they refused to complete insurance forms for the applicant. The respondents submitted that Dr. Chiu was away from the office when the applicant presented the forms for completion and that the individual respondent had no role in completing such documents. The respondents also submitted that the applicant caused confusion in the process by asking another employee to complete the forms, although it was not part of that person’s work responsibilities.

Analysis and Decision

17Section 5(1) of the Code states as follows:

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.

18Section 8 of the Code states as follows:

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.

19Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

20In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to summary hearings at paragraphs 8-9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

21The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can cause significant financial and emotional damage.

22At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

23A reprisal claim, under section 8 of the Code, is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant because he or she asserted his or her Code rights. The Tribunal set out the elements for a reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

24The applicant stated that Dr. Chiu and the individual respondent harassed her at work and that they retaliated against her by escalating their mistreatment of her after she complained about the harassment in May of 2012. The applicant indicated that the harassment was connected to her marital status because the individual respondent spread rumours about her to the effect that she was engaged in extramarital affairs because she was separating from her husband. Assuming that the individual respondent was in fact spreading such rumours about the applicant, the applicant did not point to any evidence that she has or has reasonably available to her that would support the inference that the individual respondent behaved as alleged because of the applicant’s marital status. I also note that the e-mail message the applicant sent to Dr. Chiu on May 12, 2012 indicates that the applicant felt harassed because of work demands made of her by Dr. Chiu and the individual respondent and described the applicant as an intimidating bully. The message makes no mention of any rumours circulated by the individual respondent. Consequently, there is no evidence that the alleged harassment the applicant experienced is connected to a Code ground. Accordingly, the applicant’s allegation of workplace harassment has no reasonable prospect of success and is dismissed

25A reprisal occurs when a respondent retaliates or threatens to retaliate against an applicant because he or she claimed or attempted to enforce his or her human rights. I have found, however, that there is no evidence establishing a connection between the alleged harassment the applicant experienced and a Code ground. Consequently, there is also no evidence that the applicant has or has reasonably available to her that could establish that she was attempting to enforce her Code rights when she complained about this harassment. In my view, this allegation of reprisal has no reasonable prospect of success and is dismissed.

26The Tribunal has noted in a number of cases that language is not a prohibited ground of discrimination and has also stated that a comment about an applicant’s English language proficiency is not sufficient to establish a prima facie case of discrimination. See, for example, Howard v. 407 ETR Concession, 2011 HRTO 1511 and Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386. The Tribunal has recognized, however, that in some cases language can be so inextricably linked to one’s place of origin that it can be a proxy for race, ethnicity or place of origin. See Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 (Ont. Board of Inquiry). See also: Howard v. 407 ETR Concession, 2011 HRTO 1511, Woolrich v. Royal LePage Relocation Services, 2010 HRTO 670, Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386 and Tran v. Welcome Pharmacy (Queen) Ltd., 2012 HRTO 1445. In such circumstances the Code may prohibit discrimination linked to language. Therefore, the onus is on the applicant to present evidence that could lead to a finding that the respondents used language as a proxy for her ethnic origin, e.g., that the respondents’ actions reflected a negative view of the applicant’s ethnic origin.

27The applicant pointed to evidence, denied by the respondents, that the respondents relieved her of responsibility for preparing performance reviews because of a lack of proficiency in English. As noted in Tran, above, making decisions based on language proficiency is not per se discriminatory and the applicant pointed to no evidence that the respondents’ decision to relieve her of these duties was related to her ethnicity. The applicant stated that the respondents took these duties from her because she is not Canadian, but offered no evidence to support this bare assertion. Consequently, the applicant’s allegations regarding her English language proficiency have no reasonable prospect of success and are dismissed

28The applicant made no submissions regarding the allegation that her duties shifted to bookkeeping or regarding the allegation that she did not receive payment under the organizational respondent’s profit sharing plan. Consequently, the applicant pointed to no evidence that could establish a link between these alleged incidents and a prohibited ground of discrimination. These allegations have no reasonable prospect of success and are dismissed.

29The applicant clearly attempted to claim or enforce her rights under the Code when she filed this Application. There is no dispute that the organizational respondent suspended her access to her work e-mail account and the cellular telephone service on the telephone provided to her by the organizational respondent. The applicant also pointed to evidence that the organizational respondent had permitted her to make use of this telephone for her personal calls and as a result the applicant did not have any other telephone. The applicant also pointed to evidence suggesting that the individual respondent declined to assist in the completion of insurance related forms for the applicant after the Application was filed and, as a result, that the applicant was left without income while she was on medical leave. Further, despite disconnecting the applicant’s access to her work e-mail and cellular phone, the applicant pointed to evidence that Dr. Chiu was in constant communication with her by e-mail and text after she went on medical leave. While I appreciate that the respondents have provided innocuous explanations for these incidents, the purpose of a summary hearing is not to assess the merits of the applicant’s allegations or the respondents’ defence, but to assess whether the Application has no reasonable prospect of success. In the circumstances, I cannot find that the applicant has no reasonable prospect of showing that the respondents committed reprisals regarding the suspension of access to her work e-mail account, suspension of service for her work cellular telephone, and the alleged refusal to complete the applicant’s insurance forms. Of course, the determination that these allegations can continue is not an indication that they will succeed, but simply that a merits hearing is needed to decide the matter.

30The applicant pointed to an e-mail message from Dr. Chiu in which he directed her to communicate with his lawyer after she filed the Application. Once litigation is commenced it is common for a party to choose to communicate through counsel and there is generally nothing inappropriate about such a choice. The applicant did not point to any other evidence that could support an inference that Dr. Chiu’s choice to communicate through counsel was retaliatory and in my view the applicant has no reasonable prospect of establishing that this choice amounted to a reprisal under the Code. This allegation is dismissed.

delay

31Section 34 of the Code establishes a statutory time limit for filing applications, subject to certain exceptions. The relevant portions of section 34 are as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

32The Application was filed on April 25, 2013. The incidents regarding the applicant’s refusal to provide a statement against Dr. M is alleged to have occurred in September 2010, i.e., more than one year before the filing date. The applicant submitted that the incidents set out in the Application amounted to a series of events, pursuant to section 34(1)(b) of the Code. However, the Tribunal has held that to form a series of incidents there must at least be some connection or nexus between the incidents that are alleged to form the series, and a series cannot be comprised of incidents relating to discrete and separate issues. See Baisa v. Skills for Change, 2010 HRTO 1621. The Tribunal has also said that incidents involving different facts and engaging different grounds under the Code cannot form a series of incidents for the purposes of section 34(1)(b). See Polihronakos v. Mississauga (City), 2010 HRTO 1433. Incidents separated by a gap in time of a year or more will generally not be considered a series. See Chintaman v. Toronto District School Board, 2009 HRTO 1225 and Savage v. Toronto Transit Commission, 2010 HRTO 1360. Allegations that have no reasonable prospect of success cannot form part of a series of incidents. See Chappell v. Securitas Canada Limited, 2012 HRTO 874.

33In this case, the only incidents that I would not dismiss on the basis they have no reasonable prospect of success are the applicant’s reprisal allegations, which arose after she filed the Application. There is no factual nexus between these alleged incidents of reprisal and the allegation that Dr. Chiu asked the applicant to prepare a statement against Dr. M. The applicant made no submissions about the incident in September 2010 and it is not clear to which, if any, Code ground it is connected. In these circumstances, I cannot find that this incident forms a series of events with the remaining reprisal allegations and I dismiss it as untimely.

The RHPA

34As a result of my rulings, above, the only remaining allegations are reprisal allegations that do not appear to have any connection to any proceeding before the College. Consequently, I find it unnecessary to rule on whether section 36(3) applies in this Application.

Parties to the Application

35As noted above, the respondents requested the removal of the individual respondent and submitted that Wharncliffe is the proper organizational respondent. The applicant requested that both Wharncliffe and Dr. Chiu be added as respondents.

36Rule 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 et al., 2008 HRTO 14 at paragraph 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.

37The 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.

38The Tribunal held in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud, above, at paragraph 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

Wharncliffe and Pellark

39With respect to Wharncliffe, there is no dispute that Wharncliffe is the applicant’s employer. The applicant submitted that Dr. Chiu has several businesses including Pellark Dental Care (“Pellark”), which is the administrative head office for all of them. The applicant submitted that she had worked for Pellark in the past and that employees are interchangeable among the businesses. The respondents acknowledged that Dr. Chiu is a co-owner of both Pellark and Wharncliffe, but noted that the applicant was hired by, paid by and worked for Wharncliffe.

40I am satisfied that Wharncliffe is a proper organizational respondent in light of the parties’ agreement that Wharncliffe should be a respondent to the Application. I am not satisfied, however, that Pellark should be removed as an organizational respondent, at this point. There appears to be significant interchange between the different clinics Dr. Chiu owns and operates, involving the individual respondent in particular who is employed by Pellark. Without clearer information regarding the interrelationship between these organizations and their connection to the allegations arising in this Application, I am not prepared to remove Pellark. In this regard, I note that the protection against discrimination “with respect to employment” in section 5(1) of the Code is not limited to formal employment relationships. See Chappell, above, at paragraphs 21 and 22. Accordingly, Wharncliffe is added as an organizational respondent. The style of cause shall be amended accordingly.

The Individual Respondent

41I am also not satisfied that the individual respondent should be removed from the Application. Contrary to the respondents’ submission, the applicant has made a specific allegation that the individual respondent breached the Code, i.e., reprisal, as described above. In these circumstances, an award against the individual respondent may be appropriate. Wharncliffe is not the individual respondent’s employer and is therefore not vicariously liable for her actions. The possibility remains that Pellark will be removed in the future.

Dr. Chiu

42The applicant has also made allegations of reprisal against Dr. Chiu and I find it appropriate to add him as a personal respondent. His actions are central to several of the reprisal allegations that remain in issue. Reprisal allegations require proof of intent; therefore, an award against Dr. Chiu may be appropriate should the Tribunal find that these allegations have merit. The respondents and proposed respondents did not identify any prejudice to them if Dr. Chiu is added as an individual respondent.

Order

43The Tribunal orders as follows:

1. Wharncliffe is added as an organizational respondent and the style of cause amended accordingly;

2. Dr. Chiu is added as an individual respondent and the style of cause amended accordingly;

3. The Application shall continue only with respect to the following issues:

a. Whether the suspension of access to the applicant’s work e-mail account and suspension of service for the applicant’s work cellular phone amounts to reprisals under the Code; and,

b. Whether the respondents’ alleged refusal to complete insurance forms for the applicant amounts to a reprisal under the Code.

44As noted above, the remaining allegations were first identified in the applicant’s Reply. The respondents did not object to dealing with these issues during the summary hearing and addressed them in their submissions. In these circumstances, it is not in my view necessary to require the applicant to file a new application regarding these allegations. Although the respondents addressed these allegations in their submissions during the summary hearing, they have not had the opportunity to file a formal Response to them. The remaining allegations also do not appear to have any connection to a College proceeding. Accordingly the Tribunal further orders as follows:

1. The respondents shall advise the Tribunal whether they are willing to participate in mediation regarding the remaining issues within 7 days of the date of this Interim Decision;

2. The respondents shall file a Response to the remaining issues within 35 days of the date of this Interim Decision; and,

3. The intervenor shall advise the Tribunal whether it wishes to continue to intervene in this proceeding within 7 days of the date of this Interim Decision.

45Following the summary hearing, the applicant filed several documents with the Tribunal regarding ongoing issues between her and the respondents in connection with her employment and, based on these documents, it appears that her employment has been terminated. These issues are beyond the scope of this Application, however. The applicant must either file a new application regarding these issues or file a Request for an Order During Proceedings to seek an amendment adding them to this Application.

46I am not seized.