Mwanza v. General Electric Canada Inc., 2015 HRTO 938

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bruno Mwanza

Applicant

-and-

General Electric Canada Inc. and Sol Sax

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: July 16, 2015

Citation: 2015 HRTO 938

Indexed as: Mwanza v. General Electric Canada Inc.

APPEARANCES

Bruno Mwanza, Applicant

Claire Budziak, Representative

General Electric Capital Inc., Respondent

Patty Murray, Counsel

1This is an Application filed 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 race, colour, ancestry, place of origin, ethnic origin, disability and sex.

2The Application contains a series of allegations against the applicant’s employer and a number of individual employees with whom the applicant interacted. The applicant alleges that he was the subject of an improper disciplinary process which ultimately caused him such distress that he is now disabled and incapable of working. The applicant alleges that he was treated in a harsh and demeaning manner because of his disabilities (work-related stress and adjustment disorder with depression) and his sex (male), as well as his race, place of origin, ethnic origin, ancestry and colour (French speaking Black, African, born in Kinshasa, Republic of Democratic Congo).

3In addition to the organizational respondent, the applicant has named five individual respondents. The respondents have filed a request to remove the five individual respondents and to dismiss a number of allegations which are alleged to fall outside the one-year limitation period under the Code.

4The parties received notice from the Tribunal that a conference call would be held to hear submissions on the requests. The conference call took place on May 1, 2015. The parties made submissions through their respective representatives.

Timeliness

5With respect to the timeliness of the allegations, the applicant clarified that the allegations which relate to the period 2008-2012 are meant to provide a context for the timely allegations going forward from January 2013. The applicant is not seeking a finding that these allegations constitute a breach of the Code. It is therefore not necessary to strike these portions of the Application for delay. It will be up to the hearing adjudicator to determine to what extent either party will be permitted to rely on alleged facts arising prior to January 2013.

Individual Respondents

6The applicant alleges that the alleged conduct of the following individuals is central to this proceeding:

• Kathy Lee, President and CEO;

• Veronica Runyan, Collections Leader;

• Shannon Millar, Human Resources Manager who provides human resource support to GE Capital Canada Operations and Collections team;

• Sonia Boyle, Human Resources Leader for GE Capital in Canada providing strategic human resource support for the entire business;

• Shaleish Madkaikar, Early Collections Manager who reports to Ms. Runyan and is the applicant’s direct supervisor;

• Dr. Sol Sax, an Occupational Health Physician engaged by the respondent to provide medical advice and medical opinions in managing employee health and disability issues.

7There are no specific facts plead in relation to Ms. Lee, only a theory that she knew or ought to have known that the applicant was experiencing harassment and discrimination and failed to take any action to protect him.

8With respect to the applicant’s direct manager, Mr. Madkaikar, it is alleged that he said something to the applicant which left the applicant with the impression that he had offended Ms. Runyan. Mr. Madkaikar is also accused of attending at a hospital emergency room when the applicant was taken there following an accident, glaring at him and asking when he would be coming back to work. Mr. Madkaikar is also accused of humiliating the applicant in front of his co-workers by telling the applicant to wait until he had spoken with Ms. Millar before the applicant returned to his work station.

9Ms. Runyan and Ms. Millar are accused of conspiring to discipline and terminate the applicant without cause. The applicant alleges that on February 19, 2013 he was summoned to a meeting with Ms. Runyan and Ms. Millar. The applicant alleges that he was accused of falsifying his reports to bolster his performance in the incentive program. Two days later, the applicant met again with Ms. Millar and Ms. Runyan (by telephone) and was given a “Final Warning Letter”. The applicant refused to sign the letter because in his view it contained inaccurate statements about him and the meeting two days before.

10The applicant alleges that he sought assistance from Ms. Boyle and she did nothing to assist him. Ms. Boyle advised the applicant that she was not aware of the issues he was raising. The applicant assumes that Ms. Boyle was colluding with Ms. Runyan and Ms. Millar in an effort to force him to leave the company.

11The applicant was assessed by Dr. Sax, who is engaged by the respondent for the purpose of determining eligibility for disability benefits. Dr. Sax is alleged to have asked the applicant questions about his country of origin being at war and how that war was affecting him personally. The applicant alleges that Dr. Sax was using his cultural background against him to suggest that something other than workplace stress was causing his symptoms.

12The applicant opposes removal of the individual applicants and argues that if he is successful, there will be a basis for the Tribunal to find the personal respondents liable for the alleged harassment and discrimination set out in his Application.

13The respondent argues that the applicant was employed by the respondent as an “early stage collector”. In late 2012, the respondent introduced incentive payments to collectors. The results from the first period were audited resulting in “red flags” with respect to three employees, including the applicant. The respondent argues that action was taken with respect to all three employees.

14The respondent alleges that in the applicant’s case, the audit reflected a significant discrepancy between the payout he was entitled to and the actual work completed. The applicant and the respondent have different versions of what occurred during the meetings in February 2013, however, they are in agreement that the meetings took place to discuss the applicant’s performance. The applicant has not returned to work since this time.

15With respect to the individually named respondents, the respondents argue that they should be removed in accordance with the reasoning in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”). In that case, the Tribunal found that the naming of individuals in applications involving an organizational respondent should be discouraged in light of section 45(1) of the Code, where 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.

16The Tribunal applied these principles in developing the following non-exhaustive list of factors which the Tribunal considered 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?

17The central allegations are that the applicant was unfairly disciplined with respect to the incentive program and that his disability benefits were inappropriately administered.

18There are no facts alleged against Kathy Lee, the President and CEO of the organizational respondent, only a theory that she was or should have known about the conduct of other employees. On that basis, Ms. Lee she should be removed as an individual respondent.

19Similarly, there are insufficient facts alleged against Mr. Madkaikar to suggest that he was in any way involved in the central allegations which relate to the applicant’s discipline. The disparate facts which are alleged against Mr. Madkaikar lack any context for concluding that what the applicant is alleging is a violation of his Code protected rights. On that basis, Mr. Madkaikar should be removed as an individual respondent.

20I would say the same for Ms. Boyle. The applicant assumes, without alleging any facts in support of that assumption, that Ms. Boyle collaborated with Ms. Runyan and Ms. Millar in questioning his performance and in taking disciplinary action against him. On that basis, Ms. Boyle should be removed as an individual respondent.

21The central allegations relate to Ms. Runyan, Ms. Millar and Dr. Sax. Ms. Runyan and Ms. Millar are accused of initiating and carrying out an improper disciplinary process against the applicant. Dr. Sax is accused of incorporating allegedly discriminatory questions about the applicant’s country of origin in the process of assessing his entitlement to disability benefits.

22In my view, the factors in Persaud weigh in favour of removing Ms. Millar and Ms. Runyan as respondents to this Application. The applicant disagrees with the respondent’s version of what occurred during the disciplinary meetings. However, Ms. Millar and Ms. Runyan are named as a result of their involvement in a disciplinary process, an activity which falls within the scope of their employment. The applicant alleges that his personal characteristics were a factor in how Ms. Millar and Ms. Runyan carried out the disciplinary process, but he is not alleging that they were operating outside of the scope of their employment in attempting to discipline him. There is no prejudice to the applicant in removing Ms. Millar and Ms. Runyan because of the presence in this case of the first three factors in Persaud. If a finding of discrimination is made, the organizational respondent will be in the best position to carry out any remedy ordered by the Tribunal.

23With respect to Dr. Sax, who is described as having been engaged rather than employed by the respondent, there may be an issue as to the ability of the organizational respondent to respond to or remedy the alleged Code infringement if the applicant is successful. Accordingly, I decline to exercise my discretion to remove Dr. Sax as an individual respondent to this Application. The presiding adjudicator may come to a different conclusion at a later stage in this proceeding with the benefit of more evidence or information.

Order

24The Tribunal makes the following Order:

• The personal respondents, other than Dr. Sax, are removed from this Application and the style of cause will be amended accordingly.

25I am not seized.