Human Rights Tribunal of Ontario
B E T W E E N:
Laura Breau
Applicant
-and-
The Regional Municipality of Halton
Respondent
INTERIM DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Breau v. Halton (Regional Muncipality)
WRITTEN SUBMISSIONS
Laura Breau, Applicant
Wade Poziomka, Counsel
The Regional Municipality of Halton, Zoe Vulic, Mark Ellis, and Jeff Ingram, Respondents
Amanda Lawrence, Counsel
Introduction
1The purpose of this Interim Decision is to deal with the respondents’ request to remove certain respondents to the Application, and the applicant’s request to amend the Application.
BACKGROUND
2On September 11, 2015, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the Regional Municipality of Halton, Zoe Vulic, Mark Ellis, and Jeff Ingram discriminated against her with respect to employment because of her disability and family status, and subjected her to reprisal for claiming her rights under the Code. Specifically, she alleged that between February and September 2015, she requested that the Regional Municipality of Halton grant her a further six-month medical leave of absence following her maternity leave, and provided detailed information from her medical practitioners to support her request, but the respondents responded in a skeptical, intrusive, and threatening manner, directed her to return to work on June 22, 2015, and refused to grant her a full six-month leave.
3The Regional Municipality of Halton, which is the organization respondent, is the applicant’s employer. Ms. Vulic, Mr. Ellis, and Mr. Ingram are management staff in the Human Resources (“H.R.”) and Employee Health, Safety and Wellness departments, who dealt with the applicant’s request for a further leave of absence on medical grounds.
4On November 2 and 16, 2015, the respondents filed a Response and a Request for an Order During Proceedings (“RFOP”), which denied the allegations of discrimination and reprisal, and requested that Ms. Vulic, Mr. Ellis, and Mr. Ingram be removed as respondents to the Application. The respondents stated that the applicant initially requested a further six-month leave of absence following her maternity leave because she was unable to obtain a spot in a child care centre for her child, and then also requested the leave on medical grounds, but failed to provide sufficient medical information to support the length of the leave. The respondents stated that they granted the applicant a further leave of absence on medical grounds until June 19, 2015, and that their requests for further medical information to support a longer leave were legitimate and non-discriminatory.
5On December 11, 2015, the applicant filed a Reply to the Response and a Response to the RFOP, which maintained her allegations of discrimination and reprisal, and opposed the request to remove Ms. Vulic, Mr. Ellis, and Mr. Ingram as respondents to the Application.
6On February 25, 2016, the parties attended a mediation at the Tribunal, which did not result in a settlement of the case.
7On April 20, 2016, the Tribunal issued a Notice of Hearing to the parties, which informed them that the hearing was scheduled for October 3 and 4, 2016.
8On May 25, 2016, the applicant filed an RFOP, which requested that her Application be amended to add further alleged incidents of discrimination and reprisal. Specifically, she alleged that she was subjected to harassment, discrimination and reprisals during a return to work process between January and May 2016.
9On June 24, 2016, the respondents filed a Response to the RFOP, which opposed the request to amend the Application.
REQUEST TO REMOVE RESPONDENTS TO THE APPLICATION
10I will deal first with the respondents’ request to remove Ms. Vulic, Mr. Ellis, and Mr. Ingram as respondents to the Application.
11Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14, the Tribunal set out the general principles that apply to this issue at para. 42:
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.
12In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal further expanded on these principles 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:
a) Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
b) 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?
c) Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
d) 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?
e) 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.
13In her submissions opposing the respondents’ request, the applicant stated that there are compelling reasons to continue the proceeding against Ms. Vulic, Mr. Ellis, and Mr. Ingram. Specifically, she stated that the allegations against them, if established, would amount to independent violations of the Code, and discriminatory conduct cannot be said to fall within the scope or course of their employment with the organization respondent.
14I disagree. In my view, Ms. Vulic, Mr. Ellis, and Mr. Ingram should be removed as respondents to the Application for the following reasons. They are management staff in the organization respondent’s H.R. and Employee Health, Safety and Wellness departments whose main duties include dealing with disability-related accommodation requests. There is an organization respondent (the Regional Municipality of Halton) in the proceeding that is alleged to be liable for the same alleged conduct as them, no issue has been raised as to the organization respondent’s deemed or vicarious liability for their alleged conduct, there is no issue as to the ability of the organization respondent to respond to or remedy any infringements of Code, and no real prejudice would be caused to the applicant or any other party as a result of removing them as respondents to the Application. The reasons that the applicant raised to continue the proceeding against Ms. Vulic, Mr. Ellis, and Mr. Ingram have some merit, but I do not agree that they are sufficiently compelling to continue the proceeding against them. At the end of the day, it cannot be said that it is necessary to involve them as respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
15Accordingly, the respondents’ request to remove Ms. Vulic, Mr. Ellis, and Mr. Ingram as respondents to the Application is granted. The title of proceeding is amended accordingly.
REQUEST TO AMEND APPLICATION
16I will deal next with the applicant’s request to amend the Application to add further alleged incidents of discrimination and reprisal.
17The Tribunal has a duty to dispose of Applications fairly, justly and expeditiously. See section 40 of the Code and Rule 1.1 of the Tribunal’s Rules. In determining a request to amend an Application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
18In her submissions in support of her request, the applicant stated that her request should be granted because the new allegations provide further context about the relationship between the applicant and the respondent, the hearing date is still several months away, and granting the request will not cause prejudice to the respondent.
19I disagree. In my view, the applicant’s request to amend the Application to add further alleged incidents of discrimination and reprisal should be denied because they are different in nature than the alleged incidents in the original Application, and granting the request would significantly delay hearing the Application. Specifically, the new alleged incidents, which involve the return work process between January and May 2016, are connected to, but different in nature than, the alleged incidents in the original Application, which involve a request for a medical leave of absence between February and September 2015. Furthermore, the requested amendments are lengthy (the applicant’s narrative is 105 paragraphs long), and would require that the hearing scheduled for October 3 and 4, 2016 be adjourned in order to provide the respondent with a fair opportunity to respond to them. Given this, the challenges in rescheduling the hearing to dates that the Tribunal has available and that the parties are available for, and the timelines in the Tribunal’s Rules on disclosure of documents and witnesses, it is likely that the hearing would not be rescheduled until well into 2017.
20Moreover, the denial of the applicant’s request to amend her Application does not mean that she cannot still pursue her new allegations. She can file a second Application, which will be processed separately and heard after the first Application.
21Accordingly, the applicant’s request to amend the Application to add further alleged incidents of discrimination and reprisal is denied.
ORDER
22The Tribunal therefore makes the following orders and direction:
The request to remove Ms. Vulic, Mr. Ellis, and Mr. Ingram as respondents to the Application is granted.
The request to amend the Application to add further alleged incidents of discrimination and reprisal is denied.
The hearing on October 3 and 4, 2016 will proceed as scheduled.
23I am not seized of this matter.
Dated at Toronto, this 10th day of August, 2016.
“Signed by”
Ken Bhattacharjee
Vice-chair