Roberta Mazzariol v. London District Catholic School Board, 2017 HRTO 1135

Human Rights Tribunal of Ontario

B E T W E E N:

Roberta Mazzariol Applicant

-and-

London District Catholic School Board Respondent

-and-

Ontario English Catholic Teachers Association Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend Date: September 1, 2017 Citation: 2017 HRTO 1135 Indexed as: Mazzariol v. London Catholic District School Board

WRITTEN SUBMISSIONS

Roberta Mazzariol, Applicant Ron Franklin, Counsel

London Catholic District School Board, Respondent John-Paul Alexandrowicz and Amanda Lawrence-Patel, Counsel

1On July 10, 2017, the applicant filed a second Request for an Order During Proceeding (Form 10) to amend her Application to: (1) include an event which occurred subsequent to the filing of her original Application; and (2) add a personal respondent, Jim Vair. The respondent filed a Response to the Request for Order (Form 11) indicating that it consented to the amendment with respect to the further allegation, but opposing the request to add the personal respondent.

2For the reasons outlined below, the applicant’s request to add a personal respondent is denied. In light of the respondent’s consent, the request to amend the Application to add further allegations is granted.

Analysis and Decision

3When determining a request to add a respondent, the Tribunal considers 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?

See Smyth v. Toronto Police Services, 2009 HRTO 1513.

4The application of the first stage involves considering whether there are allegations made in the amended Application that could lead to a finding that the proposed respondent violated the Code. In this case, it is not disputed that the proposed respondent was involved in conduct the applicant alleges is discriminatory and/or reprisal.

5At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board (“Persaud”), 2008 HRTO 31, at para. 5, which focus principally on whether there is an organizational respondent which is deemed liable for the proposed personal respondent’s conduct and whether the conduct of the proposed personal respondent is a central issue in the proceedings.

6I agree with the respondent’s submission that the proposed respondent’s actions took place at the end of a series of incidents alleged by the applicant. It cannot be said that the requesting of medical documentation, or the delay in providing the applicant with her 2017 timetable, is conduct which is “central” to the allegations as a whole. There is no indication that Mr. Vair was involved in the earlier conduct which forms the bulk of the allegations.

7Moreover, there is no question of liability in this case. The respondent has acknowledged that Mr. Vair was acting in the course of his employment and it would be liable for any actions taken by him. While the applicant has described Mr. Vair’s actions as “harassment,” the allegations can also be characterized as differential treatment.

8Applying the second stage factors, I find that it is unnecessary to add Jim Vair as a respondent to this proceeding. It is therefore unnecessary to inquire about the factors that might be considered at the third stage, such as the effect on the hearing process of adding the proposed respondent.

Order

9With respect to the applicant’s July 10, 2017 request to amend, I make the following orders:

a. On consent, the Application is amended to include paragraphs 7-21 of the Schedule A of the Form 10, dated July 10, 2017, except that the name “Jim Vair” shall replace all references to “Personal Respondent” in this material.

b. The respondent may file an Amended Response to the Amended Application, within 35 days of this Interim Decision.

c. The request to add Jim Vair as a personal respondent is denied.

10I am not seized.