HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrea Atanasov

Applicant

-and-

Baycrest Centre for Geriatric Care, Heather Lisner-Kerbel and Ellen Sue Mesbur

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: June 4, 2014

Citation: 2014 HRTO 797

Indexed as: Atanasov v. Baycrest Centre for Geriatric Care

APPEARANCES

Andrea Atanasov, Applicant

Self-represented

Baycrest Centre for Geriatric Care and Heather Lisner-Kerbel, Respondents

David Chondon, Counsel

Ellen Sue Mesbur, Respondent

Clarke Melville, Counsel

Introduction

1A summary hearing was held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it would succeed. In addition, the Tribunal heard submissions on the respondents’ request to dismiss the Application against Heather Lisner-Kerbel (“Lisner-Kerbel”) and Ellen Sue Mesbur (“Mesbur”) for delay and the applicant’s request to add the Baycrest Centre for Geriatric Care (“Baycrest”) as an organizational respondent.

2In a Case Assessment Direction dated December 10, 2013, the Tribunal advised that it would hold a summary hearing to address the no reasonable prospect of success and delay issues. In a second Case Assessment Direction dated January 28, 2014, the Tribunal advised that the applicant’s informal request to add a respondent would also be addressed at the summary hearing if the applicant filed a Request for an Order During Proceedings, which she subsequently did.

decision and Analysis

No Reasonable Prospect of Success

3This Application alleges discrimination with respect to contracts because of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). While the applicant has only selected reprisal from the list of grounds, both the text in the Application and the applicant’s submissions at the summary hearing make it clear that she is also pursuing the grounds of age and creed.

4The applicant was doing a practicum at Baycrest as part of her Bachelor of Social Work program at Renison University College (“Renison”), which was discontinued part-way through the program in June 2012. The personal respondent Lisner-Kerbel was the Education Co-ordinator of Social Work at Baycrest; the personal respondent Mesbur was Director of the School of Social Work at Renison, where the applicant was enrolled.

5In light of this overview, it is not clear that the selected social area of “contracts” is the correct one, and that either employment and/or services might be more applicable. In any event, the parties are clear about the context in which the alleged incidents took place and the issue of the correct social area can be addressed at the hearing on the merits, should that take place.

6In her submissions on the issue of “no reasonable prospect of success” the applicant repeated and expanded upon comments that she alleges in her Application were made to her during the course of the termination of her practicum. These comments, if true, could lead to the inference that the applicant’s practicum was terminated early on the basis of one or both of the grounds under the Code, and that she was reprised against for attempting to enforce her rights through a complaint process available at the university.

7The written and oral submissions made on behalf of the respondent Lisner-Kerbel assert (1) that there were issues with the applicant’s performance during the practicum, and (2) it was the applicant who initiated the termination of the practicum. However, these are not issues on which the Tribunal can make any findings of fact until hearing the evidence. As has been made clear in the Tribunal’s case law, dismissal for no reasonable prospect of success does not involve a weighing of the evidence, and the Tribunal cannot assume the respondents’ version of the facts to be true unless not challenged by the applicant. The applicant challenges many of the respondent’s factual allegations.

8The respondent Mesbur submits that she was not involved in the decision-making that resulted in the termination of the practicum, but the applicant does not concur that this is so. Other than “categorically” denying all of the allegations against her, Mesbur does not specifically respond to the reprisal allegation. Again, these are factual determinations that the Tribunal can only reasonably make after hearing the evidence.

Delay

9Section 34 (1) and (2) of the Human Rights Code, read as follows:

(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.

10The respondent Lisner-Kerbel submits that the Application is untimely because it was filed on June 20, 2013, more than one year after the applicant asked for a new instructor to supervise her on June 18, 2012, thereby terminating the practicum. It is not clear from the respective sets of allegations the precise chronology of events, but it would appear that there were further meetings, and further decisions made after June 18, 2012. Certainly the applicant does not agree that this was the date on which her practicum was terminated. Moreover, the applicant takes issue with the respondent’s assertion that it was the applicant who terminated the practicum, alleging instead that she communicated her willingness to return. These are factual matters that can only be determined once the evidence is heard.

11Finally, the respondent Lisner-Kerbel states that the applicant occasioned further delay by not providing all the required information on her Application form until July 23, 2013, and both respondents note that the respondent Mesbur was not served with the Application until late October 2013. However, s. 34(1) states that a person must apply within the one-year time limit, not that the application must be completed to the satisfaction of the Tribunal or that it must be served on the responding parties within that limit. Since it is the Tribunal’s responsibility to ensure that an application is complete to its standards, and only then serve the application on the respondent(s), these objections are not relevant to the jurisdictional question of whether the applicant has filed outside the one-year limitation period.

Adding an Organizational Respondent

12The applicant has requested that the Tribunal add Baycrest as an organizational respondent. Baycrest opposes this request on the basis that the request to add it occurred outside the one-year time limit.

13Rule 1.7 of the Tribunal’s Rules of Procedure gives the Tribunal the authority to remove or add a party. This authority is not limited to adding parties (in particular respondents) within the one-year time limit prescribed by s. 34(1) of the Code, although the Tribunal must be mindful of any prejudice to any proposed party added later in the process.

14Baycrest also opposed being added as a respondent on the basis that the applicant had not provided reasons for adding it. In both the pleadings and the submissions, the applicant has made it clear that she had issues with both Lisner-Kerbel and her practicum supervisor, Jan Boyd (“Boyd”), even though she does not name Boyd as a respondent. Moreover, her practicum placement was with Baycrest, not with Lisner-Kerbel.

15In this case, Baycrest is represented by the same counsel as Lisner-Kerbel. Indeed, the Response filed on behalf of Lisner-Kerbel by this counsel makes extensive reference to the Boyd’s interactions with the applicant, as well as Lisner-Kerbel’s interactions with her. Both individuals are employees of Baycrest. At no point in any of the material submitted was it suggested that these two individuals were acting outside the scope of their duties. Section 46.3(1) of the Code states:

For the purposes of the Act … 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 … shall be deemed to be an act done or omitted to be done by the corporation ….

16Given that Baycrest could be deemed liable for the acts of both employees involved in the applicant’s practicum, it is appropriate to add it as a respondent. It has not pointed to any prejudice that would result if added at this stage in the proceedings. Moreover, as the applicant points out, it is in a position to provide effective remedies (including policy changes) in the event that the Tribunal finds that the applicant’s rights under the Code were infringed.

order

17In response to the requests made by the parties, I make the following orders:

a. The respondents’ requests to dismiss the Application on the basis that it has no reasonable prospect of success and on the basis of delay are denied; and

b. Baycrest Centre for Geriatric Care is added as a respondent to this Application.

18Both the applicant and Baycrest are to advise the Tribunal within two weeks of the date of this Interim Decision whether they are prepared to engage in mediation, failing which the Tribunal will schedule a hearing.

19I am not seized of this matter.