HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kristina Arena Applicant
-and-
Sheridan College Respondent
INTERIM DECISION
Adjudicator: Eli Fellman Date: July 2, 2015 Citation: 2015 HRTO 882 Indexed as: Arena v. Sheridan College
WRITTEN SUBMISSIONS
Kristina Arena, Applicant Claire Budziak, Representative
Sheridan College, Jeff Zabudsky, Richard Finch, Ryan Piper, Paula Seeley, Sheikh Azaad and Mary Louise Noce, Respondents Patty Murray, Counsel
1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the respondents failed to modify her teaching schedule in the manner recommended by her doctor, and discriminated against her by asking her to undergo an Independent Medical Exam (IME). A hearing for this matter is scheduled for November 2-3, 2015 in Toronto.
2This Interim Decision addresses the respondents’ Request for an Order During Proceedings (RFOP) to remove all the personal respondents as parties to the proceeding. The applicant provided a response to this request on June 19, 2015. In this response the applicant provided details about the alleged conduct or knowledge of some of the personal respondents which is not contained in the Application. An Application cannot be amended in this manner. The applicant’s response to the RFOP does not form part of the Application and cannot be considered by the Tribunal for the purpose of considering the merits of the Application.
3The Application names the President of Sheridan College (the College President), as a personal respondent. The respondents submit that, the College President has no personal knowledge of any of the circumstances that gave rise to the Application and there are no specific allegations against him in the narrative of the Application. The applicant submits that the College President had knowledge of the harassment and was aware that the other personal respondents were not acting in their regular course of employment duties. The applicant alleges that the College President created a poisoned work environment by failing to take appropriate steps to address the ongoing discrimination against the applicant.
4The Application names the Dean of the Faculty of Applied Health and Community Studies (Dean), as a personal respondent. The respondents submit that there are no specific allegations against him in the narrative of the Application. The applicant submits that the Dean: ignored medical recommendations for accommodation from the applicant’s doctor; refused to arrange the applicant’s teaching schedule according to her doctor’s orders; harassed the applicant by calling into question her abilities as a professor; condoned discriminatory conduct by other personal respondents; and acted outside the scope of his employment duties.
5The Application also names the Associate Dean of the School of Community Studies (Associate Dean) as a personal respondent. The Associate Dean is the applicant’s direct supervisor. The respondents submit that that the Associate Dean does not make decisions regarding medical information which may be required from faculty members and was only privy to information respecting restrictions and limitations. The respondents suggest that her role was limited to implementing accommodation for the applicant based upon information communicated by the College’s disability management staff. The applicant submits that the Associate Dean ignored the suggested changes to the applicant’s teaching schedule recommended by the applicant’s doctor which resulted in a poisoned work environment.
6The Application names a Human Resources Portfolio Manager (HR Manager) employed by the College as a personal respondent. The respondents submit that there are no specific allegations against him in the narrative of the Application. The applicant submits that the HR Manager: ignored medical recommendations for accommodation from the applicant’s doctor; refused to arrange the applicant’s teaching schedule according to her doctor’s orders; harassed the applicant by calling into question her abilities as a professor; condoned discriminatory conduct by other personal respondents; and acted outside the scope of his employment duties.
7The Application names two individuals from the disability management consulting firm retained by the College, the firm’s president and a disability management consultant employed by the firm. The respondents submit that the only specific allegations against the firm’s president are that he refused to accept the applicant’s doctor note at face value and requested further clarification. The applicant submits that the firm’s president harassed the applicant and acted outside the scope of his employment duties by: refusing to accept the applicant’s doctor’s recommendations for accommodation; asking the applicant for personal information about her health condition; asking the applicant to obtain an IME; and determining that he is unable to recommend to the organizational respondent that the applicant requires accommodation due to disability. The respondents submit that the only specific allegation against the disability management consultant is that she refused to accept the applicant’s doctor note at face value and requested further clarification.
8The respondents submit that all of the personal respondents were acting within the course of their duties in reviewing and responding to the applicant’s requests for changes to her teaching schedule, and there is nothing on the face of the Application to suggest that they were acting outside of the scope of their responsibilities towards the organizational respondents. The applicant suggests that the Dean, Associate Dean, and HR Manager were all acting outside of the regular course of their employment duties by engaging in harassment of the applicant by questioning her medical documentation and that the College President is vicariously liable because he was made aware of the harassment and failed to take steps to address it.
Decision
9Rule 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.
10The 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:
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?
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.
11Considering all the circumstances and the criteria identified in Persaud v. Toronto District School Board, 2008 HRTO 31, I find that it is not necessary to name any of the individuals discussed above as respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
12With respect to the College President, the Application does not claim that he had knowledge of the alleged harassment, and failure to accommodate or was aware that the other personal respondents were not acting in their regular course of employment duties. The mere fact that he is the President of the organizational respondent does not render him personally liable for all allegations contained in the Application or all allegedly discriminatory conduct that occurs at Sheridan College. While the applicant’s response to the RFOP claims that the College President was aware of the allegedly discriminatory conduct of the other personal respondents, this appears to be bald assertion lacking supporting evidence and is not contained in the narrative portion of the Application.
13With respect to the Dean, the Application does not claim that he had knowledge of the alleged harassment, and failure to accommodate or was aware that the other personal respondents were not acting in their regular course of employment duties. The mere fact that he is the Dean of the Faculty in which the applicant is a member does not render him personally liable for these allegations. While the applicant’s response to the RFOP claims that the Dean was personally involved in making decisions respecting the applicant’s request for accommodation, this appears to be a bald assertion lacking supporting evidence and is not contained in the narrative portion of the Application.
14The other four named personal respondents appear to have had some involvement in the issues raised in the Application. These individuals either managed the applicant’s request for accommodation or attempted to implement changes to the applicant’s teaching schedule. I understand that the applicant does not agree with the respondents’ request for additional medical information and an IME and believes that the respondents should have implemented the schedule changes recommended by her doctor. However, this alleged conduct relates entirely to the manner in which the respondents discharged their professional duties with respect to the applicant, as opposed to their personal conduct towards the applicant. The fact that the applicant does not agree with the manner in which these personal respondents discharged their professional responsibilities, and was not satisfied with their response to her accommodation request does not mean that they were acting outside of the regular course of their employment duties. As their personal conduct is not central to the issues in the dispute, there are no compelling reasons to include them as personal respondents.
15This does not mean that the alleged discriminatory conduct of the individuals named as personal respondents cannot amount to a breach of the Code if proven by the applicant. The College will be liable for any breaches of the Code committed by its employees, and will be responsible for any ordered remedy.
16The respondents’ request to remove the personal respondents to the Application is therefore granted. The style of cause shall be amended accordingly.
17I am not seized of this matter.
Dated at Toronto, this 2nd day of July, 2015.
“Signed By”
__________________________________
Eli Fellman Vice-chair