HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Hoffman Applicant
-and-
Provincial Long Term Care Inc. Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw Date: February 24, 2014 Citation: 2014 HRTO 251 Indexed as: Hoffman v. Provincial Long Term Care Inc.
WRITTEN SUBMISSIONS
Richard Hoffman, Applicant Michael H. Hamilton, Counsel
Provincial Long Term Care Inc. and Ed Ozimek, Respondents Thomas A. Stefanik, Counsel
Introduction
1This Application alleges discrimination with respect to employment because of disability and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").
2This Interim Decision addresses a Request for an Order During Proceedings brought by the respondents on February 4, 2014.
3The hearing in this matter is scheduled for March 13, 2014.
The Respondents' Requests
4The respondents request the following orders:
a. Removal of Ed Ozimek as a respondent;
b. More detailed witness statements for the applicant's witnesses, Dr. Milo and Dr. Patino;
c. Disclosure of the applicant's complete medical file from Dr. Milo and Dr. Patino; and
d. Disclosure of the applicant's 2013 income tax return once prepared and/or, in the alternative, documents supporting the applicant's 2012 income, including bank statements, cancelled cheques and a mileage log.
Removal of the Personal Respondent
5Rule 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 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.
6The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
The Tribunal went on to frame the question to be considered as:
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.
7The respondents submitted that the criteria for removal of a personal respondent set out in Persaud, above, are met in this case. They submit that the corporate respondent is also alleged to be liable for the alleged discrimination. The corporate respondent has accepted vicarious liability in this matter, has advised the Tribunal that it also will take responsibility for any unlawful conduct of the personal respondent, and has the financial ability to satisfy any monetary or other remedy for any violations of the Code. The respondents submit that the allegations arise in the context of the personal respondent's employment and the acts he engaged in were clearly within the scope of his duties as an officer of the respondent.
8The applicant submits that the personal respondent manufactured a case of "just cause" to terminate the applicant, but as indicated, the respondent corporation has indicated it will take responsibility for any of the personal respondent's acts.
9Based on the submissions in this case, the corporate respondent is prepared to accept any potential liability on behalf of the personal respondent; it can respond to the allegations; and, if required, remedy any violations. The facts alleged in the Application do not indicate that the personal respondent was acting outside the scope of his employment duties and authority as a manager. The applicant has not asserted any specific prejudice if the personal respondent is removed and I am unable to find any compelling reason to continue this proceeding against him.
Witness Statement and Medical File from Dr. Milo
10Dr. Patino has treated the applicant's shoulder injury and Dr. Milo has treated the applicant for his mental health issues. The applicant submitted a one line witness statement for each of these doctors, which the respondents have alleged are insufficient to allow them to prepare for the hearing.
11In response, the applicant states he has tried to get more information from Dr. Milo since September 2013 and provides copies of the letters he has sent. He finally was able to provide Dr. Milo's medical file to the respondent on February 5, 2014. He has undertaken to try and provide a more fulsome witness statement to the respondent as soon as possible, but requests that he be allowed until March 7, 2014, given the difficulties he has had trying to get information from Dr. Milo.
12The Tribunal recognizes that the late provision of witness statements makes it difficult for the respondents to prepare for the hearing, but also recognizes this as a case where the applicant has been diligently trying to get further information. Therefore, the Tribunal will extend the time to provide the witness statement of Dr. Milo to March 7, 2014, and the corporate respondent may raise any difficulties it has with the lateness of the witness statement at the outset of the hearing. However, given that the applicant has now produced a copy of Dr. Milo's file, the Tribunal does not anticipate this will be necessary.
Witness Statement and Medical File from Dr. Patino
13Dr. Patino did not treat the applicant for his shoulder injury in 2010, but the applicant advises he wishes to call Dr. Patino to authenticate any medical documents related to the applicant's shoulder injury in 2010.
14The applicant had not requested Dr. Patino's medical file until January 23, 2014, and has not yet received it. He requests that he be granted until March 7, 2014 to provide it and a more detailed witness statement.
15The Tribunal will grant the applicant until March 7, 2014 to provide Dr. Patino's medical file and a more detailed witness statement. The corporate respondent may raise any prejudice related to the timing of this production at the outset of the hearing.
Production of 2013 Income Tax Return
16The applicant agrees to provide a copy of his 2013 income tax return once completed.
Disclosure of Bank Statements
17The applicant agrees to provide copies of his 2012 and 2013 bank statements by February 27, 2014.
Disclosure of Cancelled Cheques
18The corporate respondent requests the applicant's cancelled cheques because it intends to challenge the applicant's mitigation efforts, claiming that the applicant has not disclosed all of his 2012 income.
19The applicant advised he does not have cancelled cheques and requests that the Tribunal not order such disclosure.
20The Tribunal declines to order disclosure of cancelled cheques in light of the fact that the applicant agrees to produce his bank records, which will show any cheques written on his bank account.
Disclosure of Mileage Log
21The applicant has advised he does not have a mileage log or any other documents relating to his mileage claims in 2011 and 2012, and therefore the Tribunal cannot order disclosure of same.
order
22The respondents' request to remove the individual respondent is granted and the style of cause is amended accordingly.
23The applicant will provide the following to the corporate respondent by no later than March 7, 2014:
a. A more detailed witness statement from Dr. Milo;
b. A more detailed witness statement from Dr. Patino;
c. Dr. Patino's medical file relating to the applicant's shoulder injury of 2010; and
d. A copy of his 2013 income tax return within 7 days of completion.
24By no later than February 27, 2014, the applicant will provide a copy of his bank statements for 2012 and 2013.
Dated at Toronto, this 24th day of February, 2014.
"Signed by"
Dawn J. Kershaw Vice-chair