HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Fiona Morrison

Applicant

-and-

King Township and Alan Jackson

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: May 17, 2016

Citation: 2016 HRTO 667

Indexed as: Morrison v. King (Township)

WRITTEN SUBMISSIONS

Fiona Morrison, Applicant

Megan Evans Maxwell, Counsel

King Township, Respondent

M. David Ross, Counsel

Alan Jackson, Proposed Respondent

William R. Counter, Counsel

Rick Hampton and Dina Hampton, Proposed Respondents

Stephen Panzer, Counsel

1This Application, filed on September 2, 2015, under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of disability, sex and reprisal.

2In the Application, the applicant identifies several incidents of alleged harassment and discrimination that occurred when she worked as a contract maintenance worker for the organizational respondent. The applicant states that she was harassed by a co-worker; not given a $25 gift card as were other employees, in December 2014; was subjected to sexist comments by one of her supervisors; and was harassed at work by her supervisor’s wife. In the Application, the applicant named only the organizational respondent, King Township, as a respondent. The organizational respondent has responded to the Application and states that some of the applicant’s allegations are untimely, that many of her allegations do not amount to violations of the Code and that it addressed the applicant’s workplace concerns appropriately.

3On January 26, 2016, the applicant filed a Request for an Order During Proceedings seeking to add three individual respondents: Alan Jackson, Rick Hampton and Dina Hampton, who the applicant alleges are responsible for acts of discrimination and harassment (the “Request”). Each of the proposed respondents has responded to the Request.

4In the Request the applicant submitted that she had received advice that the proposed respondents harassed her and should be named personally. The applicant submitted that she identified the proposed respondents in the Application, but omitted them as respondents.

5In the Application, the applicant describes several vulgar and sexist comments that she alleges Mr. Jackson made to her when he was her supervisor. Mr. Jackson filed a Response (Form 2) instead of a Response to a Request for an Order (Form 11). In the Response, Mr. Jackson denied any harassment of the applicant and stated that, rather, he treated her with respect and provided assistance to ensure her health and safety. Mr. Jackson submitted that the Application should be dismissed.

6Mr. and Mrs. Hampton filed joint submissions in which they reviewed the Tribunal’s jurisprudence regarding adding respondents and regarding the requirement to establish a prima facie case of discrimination or harassment contrary to the Code. Mr. Hampton noted that the sole allegation against him is that the applicant did not receive a gift card in December 2014 when he was the applicant’s supervisor. Mr. Hampton submitted that this allegation could not support a finding of a Code breach and could not reasonably be interpreted as harassment. Mr. Hampton submitted that the Tribunal does not have jurisdiction to address general allegations of perceived unfairness by an applicant. Mr. Hampton submitted that there is no compelling juridical reason to add him as a respondent because at the relevant time he was an employee of the organizational respondent, which is deemed to be vicariously liable for Mr. Hampton’s actions, and there is no issue with its ability to remedy any Code breach.

7In the Application, the applicant states that Mrs. Hampton is a member of the gym at which the applicant worked. The applicant stated that Mrs. Hampton began to harass her in June 2015. The applicant states that Mrs. Hampton spoke to her in a confrontational manner, including a comment to the effect that the applicant (who identifies as having congenital heart disease) might be having a heart attack, and tampered with her work cart. The applicant also alleges that Mrs. Hampton watched the applicant for an extended period while she cleaned the washroom after it had been “trashed”. Shortly after cleaning the washroom the applicant states that she returned to find that it had again been trashed or “soiled”. The applicant brought her supervisor to inspect the washroom and Mrs. Hampton was present. The applicant alleges that Mrs. Hampton invaded her personal space and said that it was the applicant’s job to clean. Following this incident, the applicant went home, where she observed Mrs. Hampton drive slowly by her house.

8Mrs. Hampton submitted that these allegations cannot reasonably be interpreted to be harassment. Mrs. Hampton further submitted the allegations do not establish a connection to any prohibited ground of discrimination under the Code. Mrs. Hampton submitted that she is neither the applicant’s employer nor an employee of the organizational respondent. Mrs. Hampton submitted that the applicant’s allegations against her do not come within any of the social areas covered by the Code. Mrs. Hampton also submitted that the Tribunal does not have jurisdiction to address allegations of general unfairness.

Analysis and Decision

9The relevant statutory provisions are as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

7. (2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex… by his or her employer or agent of the employer or by another employee.

8. (1) In Part I and in this Part,

“harassment” means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome

46.3 (1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

10The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(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?

The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, [2008 HRTO 31](https://www.minicounsel.ca/hrto/2008/31) at paragraph [5](https://www.minicounsel.ca/hrto/2008/31), which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, above, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

11The applicant alleges that Mr. Jackson made several vulgar and sexist comments to her when he was her supervisor. These alleged facts, if proven, could support a finding that the Mr. Jackson sexually harassed the applicant, contrary to section 7(2) of the Code. Pursuant to section 46.3(1), the organizational respondent is not vicariously liable acts of sexual harassment committed by its employees and would not be responsible for any remedy if these allegations are proven. Mr. Jackson’s conduct is a central issue in the Application and there is no apparent prejudice to any party in adding the proposed respondent. In the circumstances, I find that it would be appropriate to add Mr. Jackson as a party to the proceedings. The applicant’s Request for Order is granted and the style of cause is amended accordingly.

12The applicant characterized Mr. Hampton’s conduct towards her as harassment. As Mr. Hampton noted, however, the sole allegation leveled at Mr. Hampton was that he did not give her a gift card in December 2014. Harassment under the Code requires an applicant to demonstrate that a respondent engaged in a “course of vexatious comment or conduct”, which generally entails more than one incident. The Tribunal has accepted that a sufficiently egregious or virulent single comment or incident can amount to a breach of the Code. See, for example, B.C. v. London Police Services Board, 2011 HRTO 1644, and Berisa v. Toronto (City), 2011 HRTO 912. In my view, a single incident in which the applicant did not receive a $25 gift card is not sufficiently egregious to amount to harassment under the Code. Assuming Mr. Hampton’s alleged conduct is found to be discriminatory under section 5(1), the organizational respondent is vicariously liable. Consequently, there is no compelling juridical reason to add Mr. Hampton as an individual respondent.

13If proven, the allegations against Mrs. Hampton would certainly amount to “a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome”. However, to amount to harassment under the Code, harassing conduct must be connected to a prohibited ground of discrimination. The facts alleged in the Application, assuming them to be true, do not indicate any connection with any Code ground. In these circumstances, the allegations made against Mrs. Hampton do not support a finding that the proposed respondent violated the Code and it is not appropriate to add her as an individual respondent.

Order

14The Tribunal orders as follows:

1. Alan Jackson is added to the Application as an individual respondent. The style of cause shall be amended accordingly; and,

2. The request to add Rick Hampton and Dina Hampton as individual respondents is denied.

15I am not seized.