HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
John Paterson
Applicant
-and-
Barrie Police Services Board and Jennifer Haenni
Respondents
INTERIM DECISION
Adjudicator: Esi Codjoe
Indexed as: Paterson v. Barrie Police Services Board
WRITTEN SUBMISSIONS
John Paterson, Applicant
Glenn Stuart, Counsel
Barrie Police Services Board and Jennifer Haenni, Respondents
Glenn Christie, Counsel
1The respondents filed a Request for Order During Proceedings (“Request”); first they ask that part of the Application be dismissed on the basis that the Tribunal may not have jurisdiction to hear parts of the Application because some of the alleged incidents occurred more than a year prior to the date the Application was filed. Second, they request that the Tribunal remove the personal respondent.
2The Application was filed on March 11, 2016, and it alleges discrimination because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondents engaged in discriminatory behaviours, harassed and targeted him, and failed to accommodate his disability in the workplace.
delay
3The respondents submit that a number of the applicant’s allegations are untimely, and consequently they should be dismissed on the basis of delay. To that end, they submit that there are incidents that are alleged to have occurred in 2011, 2013, 2014, and early 2015. The respondents assert that pursuant to section 34(2) of the Code, the applicant should have commenced his claim within one year from the date of the alleged infringement. They submit that the applicant has not provided a good faith reason for why he did not raise these issues in a timely way. Next, the respondents assert that they may face prejudice because various witnesses may need to be located, and may have retired from their employment, or might be deceased.
4The applicant submits the Application is timely because the allegations constitute a series of incidents, within the meaning of s. 34(1)(b) of the Code.
5The applicant asserts that the incident that occurred on March 11, 2015, constitutes the final of a series that goes back a number of years. He submits that each instance in which the respondents harassed him due to his disability, or failed to accommodate it, was a new instance of discriminatory conduct. The final incident occurred within a year of the filing of the Application, and as such the entire Application should be deemed to be timely. Further, he submits that at this stage of the proceedings, it is premature to determine whether a series of incidents have been established before evidence has been heard. The inquiry should be left to the hearing adjudicator to consider in the context of the evidentiary record, as articulated in Grange v. City of Toronto, 2014 HRTO 633 (“Grange”), at paras. 39, 43-45.
6In the alternative, the applicant submits, even if the impugned incidents do not constitute a series under s. 34(1)(b) of the Code, the delay was incurred in good faith, and the respondents have not demonstrated they will suffer any substantial prejudice. To that end, the applicant had an ongoing employment relationship with the organizational respondent, and attempted to work out his accommodation issues with it over time. Next, the respondents have not identified any specific witnesses or evidence that is not available given the passage of time.
7The applicant has asserted that a number of incidents of discrimination occurred in the workplace over a number of years. In essence, he submits that these incidents were interwoven and amounted to discrimination and harassment under the Code. In response, the respondents dispute the applicant’s characterization and veracity of the incidents. Given this reality, it is clear that it would be necessary to hear evidence to determine the timeliness issue. The applicant has raised a number of allegations; consequently, hearing evidence on the timeliness issue would be nearly indistinguishable from hearing the case on the merits. Thus the delay issue is best dealt with by the hearing adjudicator.
removal of the individual respondent
8Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. The Tribunal considered the issue of whether to remove a personal respondent in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31. The following factors have developed to assist in assessing whether a personal respondent should be removed from an application:
Is there is 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?
9The respondents submit that the personal respondent is a co-worker, not a supervisor or manager, and had no role in any of the decisions or issues outlined in the Application. To that end, they assert that the personal respondent played no role in the applicant’s workplace discipline or the accommodation process. Further, the respondents assert that the organizational respondent is able to respond to any remedies that the Tribunal may award.
10The applicant asserts that the personal respondent should not be removed. He submits that if the Tribunal finds that the personal respondent engaged in harassment under the Code, then she may be found to be liable under the statute. Namely, the applicant submits that his Application outlines allegations that could constitute discriminatory or harassing behaviour under the Code. These behaviours include making complaints based on the applicant’s disability and removing accommodations provided to him.
11The Tribunal has stated that removing a personal respondent at the early stages of the proceedings may be premature. In Madhani v. Sears Canada Inc., 2013 HRTO 290 at paras. 43-44, the Tribunal wrote as follows:
In my view, a request to remove a respondent because he or she is unlikely in the circumstances to be found personally liable under the Code should be considered with great caution where the applicant (and the Tribunal) is not in a position to know sufficient detail to be sure who was actively involved or responsible. Where the request has been made before disclosure of documents and witness statements, there is usually much less information available that could be relevant to the decision to remove a respondent.
The earlier the stage at which a request is made, and the less the agreement between the parties as to the facts, the more difficult it is to come to a principled decision. Section 36 of the Code does not contain any obvious limit to the Tribunal’s power to effectively reverse an earlier decision to remove a party, but there are predictable issues that might arise in respect of fairness in such a case; a cautious approach is clearly advisable at the earliest stages of a proceeding.
12I am not persuaded that it is appropriate to remove the personal respondent at this time. Neither party has shared its arguably relevant documents, will-say statements, or hearing documents. It is not yet evident who was actively involved in the organizational respondent’s investigations, and decision-making process. Nor is it clear, the extent and scope of the personal respondent’s involvement in any alleged discriminatory or harassing incidents.
13Further, in the event that the personal respondent was removed from the Application, it would foreclose the Tribunal’s ability to award a remedial order against her if required.
14Applying the factors set out above, I find that it is appropriate to maintain Jennifer Haenni as a personal respondent
order
15For the above reasons, the requests to remove the personal respondent and dismiss the Application based on delay are denied.
16I am not seized of this matter.
Dated at Toronto, this 1st day of September, 2017.
“Signed by”
Esi Codjoe
Vice-chair