HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gilary Massa Machado Applicant
-and-
Ryerson Students’ Union Respondent
-and-
Canadian Union of Public Employees (Local 1281) Intervenor
INTERIM DECISION
Adjudicator: Josée Bouchard Date: April 7, 2016 Citation: 2016 HRTO 438 Indexed as: Massa Machado v. Ryerson Students’ Union
WRITTEN SUBMISSIONS
Gilary Massa Machado, Applicant Saron Gebresellassi, Counsel
Ryerson Students’ Union, Respondent Brandin O’Connor, Counsel
Canadian Union of Public Employees (Local 1281), Intervenor Mona Staples, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision deals with the issue of whether the Application should be deferred pending the completion of a related grievance proceeding (“request to defer”) and whether the five personal respondents should be removed as parties to the Application (“request to remove personal respondents”).
Request to Defer
2The Application attaches a copy of the grievance filed on the applicant’s behalf by the Canadian Union of Public Employees, Local 1281 (the “Union”). The grievance is still in process.
3On February 16, 2016, the organizational respondent filed a request to defer. The organizational respondent submits that the grievance was commenced before the Application and was referred to arbitration on December 15, 2015. Further, it submits that the subject matter of the grievance is identical to the Application.
4The applicant objects to the request to defer and argues that the other proceedings in relation to the grievance, filed by the Union, will not address the Code infringements. The grievance is in relation to labour issues and not violations of human rights.
5The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1 of the Rules of Procedure). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
6The Tribunal has generally deferred applications where there is an ongoing grievance under a collective agreement based on the same facts and human rights issues. In explaining this approach, the Tribunal has referred to the Supreme Court of Canada decision affirming that grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement. See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42.
7It is apparent that there is substantial overlap between the facts and human rights issues covered by the Application and those referred to in the grievance. I am satisfied that the applicant’s concerns that the grievance process will fail to address the human rights matters do not justify a departure from the Tribunal’s regular approach. The matter is still live and the grievance process has not concluded. The applicant’s grievance has been referred to arbitration. If the applicant believes, on conclusion of the process, that her human rights issues have not been adequately addressed, she may ask to have her Application brought back on before the Tribunal.
8The Application will therefore be deferred pending the completion of the grievance process.
9The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 of the Rules of Procedure which outline the procedure by which the Application may be brought back on after the conclusion of the grievance process. Where a party wishes to proceed with an Application that has been deferred, the party must file a Request for an Order During Proceedings (Form 10) no later than 60 days after the conclusion of the other proceeding. The Tribunal’s Rules of Procedure and Forms can be found on its website at www.sjto.gov.on.ca/hrto/.
Request to Remove the Personal Respondents
10Rule 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.
11The 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 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?
12In 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 application.
13The organizational respondent, Ryerson Students Association, describes itself as a non-share capital corporation incorporated pursuant to the laws of Ontario and governed by a Board of Directors that delegates its day-to-day operations to an elected, five-member student executive committee. It accepts that it is vicariously liable for the actions of all of the personal respondents in the course of their duties as officers of the corporation. It maintains that there is no allegation of individual harassment by any of the personal respondents in their individual capacities. The organizational respondent submits that there would be no prejudice to the applicant if the personal respondents were removed, as the Application could proceed against it.
14The applicant objects to the removal of the personal respondents. The applicant claims that the personal respondents were all part of the executive committee and made decisions together as a unit. As a result, she maintains that the alleged Code infringement was done as a collective decision and acted upon as a collective. The applicant seeks to obtain an order for mandatory training related to the Code infringements for each member of the executive committee. She is concerned that, if the personal respondents are removed, the remedy will be enforced against the corporate entity only and not the individuals. The applicant maintains that the executive committee members proceeded with the impugned actions without approval from the Board of Directors thereby acting with individualized authority separate and distinct from the organizational respondent as an organizational unit.
15I agree with the organizational respondent’s submissions. In my view, considering all the circumstances, it is not necessary to include the personal respondents as parties in order to have a fair, just and expeditious resolution of the merits of the Application.
16In applying the Persaud criteria above, I am confident that the organizational respondent accepts that it is vicariously liable for the actions of all of the personal respondents in the course of their duties as officers of the corporation. There is no allegation of individual harassment by any of the personal respondents in their individual capacities and there is nothing to indicate that there are issues as to the ability of the organizational respondent to respond the alleged Code infringement. I also find that there is no prejudice to the applicant if the personal respondents are removed, as the Application could proceed against the organizational respondent.
Order
17The Tribunal orders the following:
a. The Application is deferred pending the completion of the grievance proceeding.
b. The personal respondents are removed as parties to this proceeding. The style of cause is amended accordingly.
18I am not seized of this matter.
Dated at Toronto, this 7th day of April, 2016.
“Signed by”
Josée Bouchard Vice-chair