HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Marlene Richardson
Applicant
-and-
Niagara Health System
Respondent
INTERIM DECISION
Adjudicator: Laurie Letheren
Indexed as: Richardson v. Niagara Health System
WRITTEN SUBMISSIONS
Marlene Richardson, Applicant
Dan Covelli, Paralegal
Niagara Health Systems, Respondent
Matthew Mihailovich, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability.
2The purpose of this Interim Decision is to address the respondents’ request for the Application to be dismissed pursuant to s. 45.1 of the Code as a result of proceedings before the Workplace Safety and Insurance Board (“WSIB”) and request for removal of the personal respondent.
REQUEST TO DISMISS PURSUANT TO S. 45.1 OF THE CODE
3Section 45.1 of the Code states:
The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.
4Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.
5The applicant alleges that she experienced discrimination when the respondents failed to accommodate her by placing her in an employment position that met her disability-related needs and in terminating her employment.
6On December 16, 2014, the WSIB Appeals Resolution Officer (“ARO”) issued a decision on the applicant’s objection to the WSIB decisions in which she had been denied payment of full loss of earnings benefits on a couple of occasions, denied an entitlement to a Non-Economic Loss award, and determined not to have a psychotraumatic disability or chronic pain disability.
7The respondents take the position that the decisions of the WSIB, including the decision of the ARO, should be considered to be a proceeding for the purposes of section 45.1. The respondents also submit that the ARO appropriately dealt with the substance of the Application when the ARO found that the respondents offered the applicant safe and suitable modified work, and that the applicant had placed self-imposed barriers and resistance on the return to work process and refused suitable work which resulted in the WSIB denial of her application for Loss of Earnings benefits. The respondents submit that in making these decisions, the ARO appropriately dealt with the issues of whether the respondents had accommodated the applicant and whether it was discriminatory to terminate her employment.
8The applicant submits that the ARO’s decision is not a proceeding as it is simply an internal decision of a WSIB employee. In addition, the applicant submits that the ARO only has jurisdiction to deal with work-related injuries and has no power to determine the merits of an employment termination.
Analysis
9The ARO’s decision is limited to determinations of whether the applicant was eligible for benefits available under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sch. A, and in order to be eligible for such benefits a connection to a workplace injury must be found. For example, the return to work plan for the applicant outlined duties that were suitable to the restrictions that resulted from her workplace injury; however, the ARO decision notes that the return to work activity was interrupted by the applicant’s non-work-related motor vehicle accident. In addition, the ARO concluded that the applicant’s psychotraumatic disability and chronic pain were not directly and clearly related to the work-related injury.
10The duty to accommodate under the Code obligates the respondents with respect to all the applicant’s alleged disabilities and is not limited to disabilities that arise from a workplace injury. The ARO’s decision notes the non-work-related motor vehicle accident and that “factors other than the workplace injury are impacting her emotional state”. It is clear from the ARO’s decision that the applicant may have other non-workplace injury related disabilities that were not addressed by the ARO.
11I find that the ARO has not appropriately dealt with the full substance of the Application and therefore, it would be inappropriate to dismiss the Application pursuant to s.45.1 of the Code.
12It may be that some of the factual determinations of the ARO may impact the issues in dispute in a hearing of this case; however, I leave those determinations for the hearing adjudicator after the parties have completed their productions and identified more precisely the evidence the parties propose to bring to the hearing.
REQUEST TO REMOVE PERSONAL RESPONDENT
13The respondents have filed a Request for an Order during Proceedings, seeking to have the personal respondent removed as a party to the proceeding.
14Rule 1.7(b) of the Tribunal’s Rules of Procedure 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.
15The Tribunal 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 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.
16The respondents submit that it is appropriate to remove the personal respondent as a party to the proceeding on the basis that the personal respondent was acting within the course of his employment as an employee of the corporate respondent and was not acting in his personal capacity. All of the personal respondent’s actions should be attributed to the corporate respondent, his employer, and pursuant to section 46.3 of the Code, the corporate respondent is liable for his conduct. The applicant has not made any allegations against the personal respondent that, in his personal capacity, would amount to an infringement of the Code.
17The applicant did not make any submissions on the respondents’ Request to remove the personal respondent as a party to the proceeding.
18Having considered the respondents’ submissions, I find that it is appropriate to remove the personal respondent as a respondent to the Application.
ORDER
19The respondents’ Request that the Application be dismissed pursuant to s.45.1 of the Code is denied.
20The personal applicant is removed as a respondent to the Application and the style of cause is amended accordingly.
Dated at Toronto, this 23rd day of July, 2015.
“Signed by”
Laurie Letheren
Vice-chair