Morrison v. Toronto Central Community Care Access Centre, 2016 HRTO 604

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Morrison

Applicant

-and-

Toronto Central Community Care Access Centre, Dennis Fong, May Lin Poon and Suzanne Jones

Respondents

-and-

Canadian Office and Professional Employees Union

Intervenor

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 5, 2016

Citation: 2016 HRTO 604

Indexed as: Morrison v. Toronto Central Community Care Access Centre

WRITTEN SUBMISSIONS

Jennifer Morrison, Applicant

Cecil Norman, Representative

Toronto Community Care Access Centre, Respondent

Matthew Demeo, Counsel

1The hearing in this matter is scheduled for June 20 and 21, 2016. This Interim Decision deals with the respondents’ request that the Tribunal remove the personal respondents from the Application and its request for sufficient particulars regarding the applicant’s allegations.

Request to Remove Personal Respondents

2The respondents requested that the Tribunal remove the three personal respondents named by the applicant. The three personal respondents are the applicant’s Manager, the Senior Director of Human Resources, and the Senior Manager of Human Resources of the organizational respondent.

3The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

4When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, when deciding whether to add or remove a personal respondent when there is an organizational respondent to the Application. These factors focus mainly on whether the corporate respondent is responsible for the conduct of the personal respondent, and whether there is a compelling legal reason for an individual to be retained as a personal respondent. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found.

5The issue is whether there is any compelling reason to continue the proceeding as against the personal respondents. The applicant makes a variety of discrimination and harassment allegations against the personal respondents. Although she has framed many of her allegations as harassment, her claim is in substance that the personal respondents treated her differently due to her race, age, and disability. I see no compelling reason to continue the proceeding against the personal respondents personally, as their actions were taken as employees managing the workplace. I find that no prejudice would be caused to the applicant by removing these personal respondents since the organizational respondent would be deemed liable for any breaches of the Code arising from their alleged actions in this case.

6For these reasons, the three personal respondents are removed from the Application.

organizational Respondent’s Request for Particulars

7In their Response, the respondents requested particulars from the applicant with respect to many of her allegations that were lacking in particulars.

8By Case Assessment Direction (“CAD”) dated April 11, 2016, the Tribunal directed the applicant to provide the requested particulars. The applicant’s representative filed a letter providing some additional particulars on April 29, 2016. The respondent replied by taking the position that the applicant’s representative had simply reorganized the allegations contained in the Application but failed to provide the particulars requested by the Tribunal.

9In reviewing the April 29, 2016 letter from the applicant’s representative, I find that he did provide some additional particulars in response to the Tribunal’s CAD. However, many of the allegations still lack very detailed particulars. Having said this, it appears to me that the applicant has provided all the particulars she is capable of putting forward and therefore all the particulars she intends to rely upon at the hearing. Therefore, with one exception I see no benefit to directing her to provide further particulars that she does not appear to be capable of putting forward.

10The one exception relates to the applicant’s claim that “between August 2013 and July 2014, she could not do anything right. Denis Fong and May Lin Poon found fault with everything she did.” I find that this statement lacks particulars relating to both the substance of the applicant’s allegation and the precise timing of any incidents within this time period. The applicant must provide particulars relating to the statement set out above and the timing of any incidents she is seeking to rely upon to support her claim that Mr. Fong and Ms. Lin Poon found fault with everything she did.

11For the reasons set out above, with the exception of the particulars relating to the statement set out in the previous paragraph, I decline to order the applicant to provide any further particulars.

12However, I draw the applicant’s attention to Rule 5.7 of the Tribunal’s Rules of Procedure which states:

5.7. Where a party seeks to present evidence or make submissions with respect to a fact or issue that was not raised in the Application, Response, Reply, or in the materials filed under Rule 16 or 17, the Tribunal may refuse to allow the party to present evidence or make submissions about the fact or issue unless satisfied that there would be no substantial prejudice and no undue delay to the proceedings.

Mediation-Adjudication

13The parties should note that Rule 15A of the Tribunal’s Rules of Procedure authorizes the use of mediation-adjudication in which the adjudicator assigned to the case assists the parties, with their consent, to resolve the dispute at the hearing. This would be done on the understanding that if a settlement is not reached the adjudicator would go on to hear and determine the case. The process is a voluntary process. If the parties are agreeable to engage this process they should advise the Tribunal, preferably prior to the first day of the hearing.

order

14The Tribunal orders as follows:

a. The respondent’s request to remove the personal respondents to this Application is granted.

b. The applicant is ordered to deliver to the respondent and file with the Tribunal the particulars described in para. 10 above no later than 7 days from the date of this Interim Decision.

c. The deadline for the parties to file the pre-hearing disclosure required under Rule 16.2 and Rule 17 of the Tribunal’s Rules of Procedure is extended to May 30, 2016.