Anozie v. McGrattan, 2016 HRTO 1345

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stanley Anozie

Applicant

-and-

William McGrattan and the Episcopal Corporation of the Diocese of Peterborough

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 17, 2016

Citation: 2016 HRTO 1345

Indexed As: Anozie v. McGrattan

1This Application alleges reprisal and discrimination in employment because of race, colour, place of origin, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). The applicant is an ordained Roman Catholic Priest. The respondent is Bishop of the Roman Catholic Episcopal Corporation of the Diocese of Peterborough.

2In his Response to the Application, the respondent submits that the Tribunal does not have jurisdiction to deal with the allegations in the Application because the issues raised in the Application are governed by the Code of Canon Law and not by the Code. The respondent submits that the Application should be dismissed on that basis. In the alternative, the respondent submits that the Application should be dismissed as having no reasonable prospect of success.

3The applicant submits that his allegations are related to infringements of his Code-protected rights and that he is entitled to have them considered by this Tribunal.

4This Case Assessment Direction addresses a number of issues that arise from the communications from the parties concerning this Application.

Does the Human Rights Code apply?

5The question of whether relationships between the Roman Catholic Church and its Priests are subject only to the Code of Canon Law was considered by the Ontario Court of Appeal in Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728. In that case, a Priest sought to continue a civil action against the Diocese. The Diocese argued that the matter fell entirely under the Canon Code. At paragraph 22, the Court found that the answer to the question of whether the Priest could continue the action or if he was required to follow the internal review process established under the Code of Canon Law must be determined on the basis of the facts giving rise to the dispute.

6On the basis of the documents and submissions filed by the parties in this case, it is difficult to determine what the facts giving rise to the dispute are. I conclude that the issue of the Tribunal’s jurisdiction to deal with the Application requires information from the parties in order to understand the facts giving rise to the dispute.

Nature of the relationship between the parties

7The Application alleges discrimination in the social area of employment. There appears to be an issue in this case about whether the relationship between the parties is an employment relationship. If it is not, there is a question about whether the Tribunal has jurisdiction to deal with the Application, assuming that the Code has application to the facts of the case. This issue also requires evidence to understand the relationship between the parties and whether it is a relationship that falls under “employment”.

Timeliness

8Section 34 of the Human Rights Code provides:

34. (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.

9The Application was filed on January 14, 2016. Much of the applicant's narrative about the things that he says occurred happened more than one year before that date. For the Tribunal to have jurisdiction to deal with those things, the applicant would have to show that the earlier events were part of a series of incidents or that there is a good faith explanation for the delay in filing an Application about them.

Request to amend the Application

10The applicant has filed a request to amend the Application to add the Episcopal Corporation of the Diocese of Peterborough and three additional personal respondents. The proposed additional respondents have not responded to this request.

11The factors the Tribunal typically considers when determining whether a respondent should be added include the following:

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 is 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?

12In general terms, a corporation is liable for the actions of people who are directors or employees. Also in general, the Tribunal discourages the unnecessary addition of personal respondents.

13In the absence of an objection, I find that it is appropriate to add the Episcopal Corporation of the Diocese of Peterborough as a respondent. It is not necessary for the Diocese to file a Response to the Application at this time, as there are a number of preliminary issues that need to be addressed. However, the Diocese may file a separate Response if it wishes to do so. In that event, the Response should be filed by November 4, 2016.

14The documents filed by the applicant in support of his request to add the personal respondents do not appear to include any specific allegations concerning the applicant’s Code-protected rights. There does not appear to be any allegations that, if true, might warrant an order concerning the personal respondents personally.

15The request to add the additional personal respondents is therefore denied at this time.

Request for a Tribunal inquiry

16The applicant has filed a request for a Tribunal inquiry. Although the Tribunal has the authority under section 44 of the Code to appoint a person to conduct an inquiry, the Tribunal has not done this in the past. The reason for this is that in most cases, the relevant evidence can be produced at a hearing and there is no purpose in having a separate inquiry process. The request for a Tribunal inquiry is denied

Is there no reasonable prospect of success?

17This Tribunal does not have jurisdiction to deal with all allegations of unfairness. It can only deal with allegations that a person has experienced discrimination or harassment on the grounds set out in the Code. The applicant has identified race, colour, place of origin as the grounds of alleged discrimination. However, it is not clear how the applicant will prove that the unfair treatment he alleges he experienced is related to those grounds.

18If it appears to the Tribunal that an Application may have no reasonable prospect of success, the Tribunal may hold a summary hearing to hear submissions from the parties about whether the Application should be dismissed as having no reasonable prospect of success. The respondent has asked the Tribunal to hold a summary hearing in this case.

19In a summary hearing, the Tribunal does not usually hear evidence. Instead, it is an opportunity for the applicant to clarify his allegations, explain how his allegations relate to his Code-protected grounds, and explain what evidence is reasonably available that will establish that the applicant experienced discrimination or harassment contrary to the Code. The Tribunal’s Practice Direction on Summary Hearing Requests provides more information about the summary hearing process.

20In this case, I find that it is appropriate for the Tribunal to hold a preliminary hearing at which one of the issues will be whether the Application should be dismissed as having no reasonable prospect of success.

Direction

21The Registrar will schedule a one-day, in-person preliminary hearing to hear submissions and information or evidence from the parties on the following issues:

1. Does the Tribunal have jurisdiction to deal with the Application or is it entirely subject to the Code of Canon Law?

2. If the Human Rights Code applies, is the social ground of “employment” engaged by the relationship between the parties?

3. Are the allegations timely? If not, should the allegations, or some of them, be dismissed as not timely?

4. If the Tribunal has jurisdiction over the Application, should it be dismissed in whole or in part as having no reasonable prospect of success?

22In addition, if the parties would like such assistance, the Tribunal may offer to assist the parties with settlement discussions pursuant to the Tribunal’s Mediation/Adjudication process, which is described in Rule 15A of the Tribunal’s Rules of Procedure.