McDonough v. Joseph Brant Hospital, 2017 HRTO 1196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason McDonough

Applicant

-and-

Joseph Brant Hospital and Jennifer Gray

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: September 12, 2017

Citation: 2017 HRTO 1196

Indexed as: McDonough v. Joseph Brant Hospital

INTRODUCTION

1This Application alleges discrimination with respect to employment because of contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing is scheduled for November 14 and 15, 2017, in Toronto.

3The applicant filed a Request for Order During Proceedings (“Request”) on June 5, 2017, to add Jennifer Gray as a personal respondent to this Application.

4On June 16, 2017, the respondent Joseph Brant Hospital (the “Hospital”) filed a Request for dismissal of allegations made with respect to incidents that occurred in 2015 as being outside the Tribunal’s jurisdiction because the Application was filed more than one year after these incidents.

DELAY

5The Hospital submits that the allegations made in the Application relate to two different harassment complaints; one made in June 2015 and the second made in November 2016. The Hospital submits that these complaints do not constitute a series of incidents; the applicant has no good faith reason for the delay; and that the Hospital would be prejudiced by the delay. It submits that allegations about incidents that occurred prior to November 2015 should be dismissed.

6The applicant opposes the Request. He submits that the incidents alleged, which date back to January 2015, form a series because they have a common theme of harassment by the same person and that the same workplace failed in its duty to properly investigate and address the harassment.

Analysis and Decision

7Subsections 34(1) and (2) of the Code enable individuals to file applications to the Tribunal and set out the timeframes for doing so:

34. (1) If a person believes that any of his or her rights under Part 1 have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8In determining whether prior alleged incidents form part of a “series of incidents”, the Tribunal considers the following factors:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

See Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30.

9The Tribunal has held that a gap of more than one year between alleged incidents may be found to interrupt the series: see for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. However, the Tribunal has determined that this should not be regarded as a rigid rule: Poursina v. Southern Lights Co-operative Homes Inc., 2016 HRTO 1551; Labao v. Toronto Police Services Board, 2012 HRTO 1529; and Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927.

10The decision made by the Tribunal to find that allegations form part of a series of incidents and to therefore take jurisdiction over allegations of incidents that occurred more than one year prior to the date of filing an Application is discretionary. To state that a gap of more than one year between incidents must be found to interrupt the series would be to import a restriction into the Tribunal’s discretionary decision making power that is not warranted by the words of s.34. As stated in Garrie, above, the gap between incidents is just one of the factors to consider.

11The Tribunal has determined that a “series of incidents” may be considered to exist where the incidents share a common theme, similar parties and/or circumstances: Baisa v. Skills for Change, 2010 HRTO 1621. In Pakarian v. Chen, 2010 HRTO 457, the Tribunal defined the word “series” as “a number of things or events of the same class coming one after another in spatial or temporal succession”.

12In the circumstances of this case, I find that the 16-month gap between the completion of the investigation of the first complaint in July 2015 and November 8, 2016, when the applicant made a further complaint about Ms. Gray’s conduct, does not disrupt the series. The incidents of harassment that the applicant alleges he experienced are alleged to have been committed by the same person. The applicant further alleges that in neither instance did the Hospital properly address his complaints about the harassment.

13It is alleged that the first complaint was investigated and Ms. Gray was reprimanded. The applicant alleges that he began to again experience incidents of harassment by Ms. Gray in the latter part of 2016. The allegations are based on assertions of fact that are sufficiently similar or related to constitute, if established, a pattern of conduct, rather than on alleged incidents relating to discrete issues without some connection or nexus. The allegations have the same theme: the applicant experienced sexual harassment by a co-worker in his workplace and the employer failed to properly address his experiences. Because of the clear connection in the nature and theme of the incidents, I find that the gap “does not serve to break the series of incidents in this case”: McWilliam v. Toronto Police Services Board, 2016 HRTO 449 at para. 6.

14The Hospital’s Request to dismiss all allegations of incidents that occurred in 2015 is dismissed.

request to add Jennifer gray as respondent

15When the applicant filed his Request to add Jennifer Gray as a respondent, he indicated on the Statement of Delivery that the Request and pleadings were sent to Jennifer Gray by courier. She has therefore had notice of this Request since June 5, 2017.

16The Hospital filed a Response to the Request indicating that it took no position on the Request.

17Ms. Gray opposes the Request.

Analysis and Decision

18Ms. Gray submits that she should not be added as a respondent because the Application was filed more than one year after the last alleged incident and the Tribunal therefore does not have the jurisdiction to address the Application. As stated above, the incidents form a series and the Tribunal finds that it does have jurisdiction over all the allegations made in the Application. As a result, Tribunal does not deny the Request to add Ms. Gray as a respondent on that basis.

19Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add a party. In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following test for adding a respondent at para. 12:

(…) 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?

20The application of the first stage of assessing whether a respondent should be added involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the proposed respondent breached the applicant’s Code rights. At the second stage, the Tribunal applies the factors outlined in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) at paras. 4-5. In Persaud, the Tribunal was considering whether a respondent should be removed; however the same factors are considered when a request is made to add a respondent. The focus in most cases is on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. 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, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

21Ms. Gray submits that she should not be added because the Application does not contain any allegations that she has breached the applicant’s Code rights.

22The Application details a number of allegations which describe incidents involving Ms. Gray that, if proven, could be found to be sexual harassment and could constitute breaches of the applicant’s Code rights.

23Although section 46.3 of the Code provides that corporations are vicariously liable for the acts of their officers, officials, employees or agents, “harassment” within the meaning of the Code is excepted from this provision. Consequently, there are allegations in the Application which, if proven, could lead the Tribunal to attach personal liability to the proposed respondent, and it appears that the individual conduct of the proposed respondent is a central issue in the Application. Should Ms. Gray not be added, the applicant could be in a position where the Tribunal finds that the harassment he experienced did violate his Code rights but because the Hospital is not liable under section 46.3, there is no party to remedy the Code breaches.

24Ms. Gray submits that she would be prejudiced if she were added at this point because it would not allow her to prepare a fulsome response.

25The applicant filed his Request within one year of the last alleged incident of discrimination in his Application. The applicant states that only after he retained legal counsel on May 24, 2017 did he become aware of the exception under section 46.3.

26The hearing on the merits of the Applicant is scheduled for November 14 and 15, 2017, which gives Ms. Gray two months to file a Response and serve and file documents and witness statements.

27Should the parties determine upon receipt of Ms. Gray’s response that they require additional time to properly prepare for the hearing on the merits, this can be canvassed with the Tribunal.

28In the circumstances, it appears that it would be appropriate to add the proposed individual respondent as a party to the proceedings. The applicant was not aware of the impact of not having Jennifer Gray as a respondent prior to May 24, 2017, and any prejudice to Ms. Gray or the other parties in having her added at this point can be remedied.

order

29The Tribunal makes the following orders and directions:

i. The respondent’s Request to dismiss all allegations of incidents that occurred in 2015 is dismissed.

ii. The applicant’s Request to add Jennifer Gray as an individual respondent is granted and the style of cause is amended accordingly.

iii. Within 35 days of the date of this Interim Decision, Jennifer Gray shall file her Response to the Application with the Tribunal and serve it on the other parties.

iv. Once Jennifer Gray has filed her Response, the Tribunal will convene a case conference by teleconference to discuss timelines for disclosure and hearing preparation.