Bansal v. RBC General Insurance Company, 2017 HRTO 1320

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rita Bansal

Applicant

-and-

RBC General Insurance Company

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: October 5, 2017
Citation: 2017 HRTO 1320
Indexed as: Bansal v. RBC General Insurance Company

APPEARANCES

Rita Bansal, Applicant
Self-represented

RBC General Insurance Company, Lenka Jugovic and Sabrina Datoo, Respondents
Karen Jensen, Counsel

The Manufacturers Life Insurance Company and Gabriel Shamaoun, Respondents
Elaine Yakau, Counsel

1The applicant filed an Application alleging discrimination in employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).

2The respondents, The Manufacturers Life Insurance Company (“Manulife”) and Gabriel Shamaoun, filed a Form 26 Request for a Summary Hearing on February 16, 2017 requesting that the Application be dismissed in its entirety against those two respondents.

3The respondents, RBC General Insurance Company (“RBC”), Lenka Jugovic and Sabrina Datoo, also filed a Form 10 Request for an Order During Proceedings, dated April 13, 2017 requesting that Ms. Jugovic and Ms. Datoo be removed as parties to the proceeding.

4The Tribunal issued a Case Assessment Direction (“CAD”), dated February 27, 2017, in which it directed that a summary hearing to decide whether any or all of the Application should be dismissed, as against Manulife and Ms. Shamaoun, as having no reasonable prospect of success because it appeared there may be no employment relationship between the applicant and Manulife and Mr. Shamaoun.

5The Tribunal issued a second CAD on September 12, 2017 directing that the issue of whether the individual respondents should be removed should be heard at the same time as the summary hearing.

6The summary hearing took place by teleconference call on September 25, 2017 and all parties attended and made submissions.

background

7The applicant alleges she has a disability that prevented her from working, and that her employer, RBC, failed to accommodate her disability so that she could return to work. Manulife provided claims adjudication services for RBC with respect to short-term disability (“STD”) claims made by RBC’s employees. RBC self-insured STD claims and retained all liability and responsibility for STD claims payable to its employees. Mr. Shamaoun was an employee of Manulife and assessed the applicant’s STD claim.

8The applicant alleges Manulife and Mr. Shamaoun did not make recommendations to RBC with respect to modified work for her.

9With respect to the allegations against RBC, Ms. Jugovic is a Director, Home and Auto Advice Centre, at RBC. Ms. Datoo is a team leader with RBC GIC and was the applicant’s supervisor. The applicant alleges Ms. Datoo and Ms. Jugovic did not treat her fairly because they played games with whether or not her vacation request was approved. The applicant also alleges Ms. Jugovic yelled at her and sent her threatening letters. Ultimately, RBC terminated the applicant’s employment on March 15, 2016.

Analysis and Decision

Dismissal as against Manulife and Gabriel Shamaoun

10The applicant admits Manulife was not her employer. She submits that Manulife, and Mr. Shamaoun in particular, did not make proper recommendations to RBC with respect to how they could accommodate her disability so she could return to work.

11Manulife submits that the applicant has not provided any evidence that it treated her any differently than any other STD claimant during the claims adjudication process.

12The Tribunal does not have a general power to inquire into all relationships and all difficulties that may occur in those relationships. The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in the social areas of “employment”, “goods, services and facilities”, “accommodation” (housing), “contracts” and “membership in vocational associations”.

13In Iles v. Manufacturers Life Insurance Company, 2014 HRTO 992 at paras. 23 and 24, the Tribunal found that because the respondent was not the applicant’s employer the applicant’s allegations that the respondent discriminated against him had no reasonable prospect of success and were dismissed. See also, Ivanescu v. Credit Valley Hospital, 2012 HRTO 1352 at para. 21.

14In this case, neither the allegations in the Application nor the applicant’s submissions during this hearing demonstrated any connection between the treatment she alleges she received from Manulife and Mr. Shamaoun and any social area covered by the Code because these respondents were not the applicant’s employer.

15As such, the allegations against these two respondents in the Application do not fall within the Tribunal’s jurisdiction and they have no reasonable prospect of success.

16The Application is dismissed against Manulife and Mr. Shamaoun.

Removal of Individual Respondents, Ms. Datoo and Ms. Jugovic

17Since the Application has been dismissed as against Mr. Shamaoun, I need only determine, for the purposes of this summary hearing, whether or not the personal respondents, Ms. Lenka and Ms. Datoo, who are employees of RBC should be removed as parties to the proceeding.

18Rule 1.7(b) of the Tribunal’s Rules provides the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

19The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 ( “Persaud”) at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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 is 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?

20In considering whether any compelling reason exists to continue the proceeding against an individual respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

21I am satisfied that the factors outlined in the cases support the removal of the individual respondents.

22RBC submits that the individual respondents should be removed because it, as the corporate respondent, is also alleged to be liable for the conduct of which the applicant complains, and it accepts responsibility for the alleged actions of the individual respondents. Section 45.1 of the Code provides that a corporation is deemed to be liable for “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. RBC also submits that the personal respondents were acting in the course of their employment when making decisions with respect to the applicant.

23The applicant submits that it is Ms. Datoo and Ms. Jugovic with whom she had to deal and that they discriminated against her by not giving her modified duties. In addition, they played games with respect to whether she in fact had her vacation time approved or not.

24I find no compelling reason to continue the proceeding as against the individual respondents given the corporate respondent’s acknowledgment of responsibility and indication that it will ensure compliance with any orders made by the Tribunal, if liability is found and any orders are made. There is no prejudice to the applicant if the individual respondents are removed as the Application will continue against RBC.

25In applying the Persaud criteria above, I am confident that RBC accepts that it is vicariously liable for the actions of the individual respondents in the course of their duties. There is nothing to indicate there are issues with respect to the ability of RBC to respond the alleged Code infringement.

26RBC’s request to remove the individual respondents, Ms. Jugovic and Ms. Datoo, is granted. In my view, considering all the circumstances, it is not necessary to involve the individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application. The style of cause is amended accordingly.

order

27The Tribunal makes the following orders:

a. The Application is dismissed as against The Manufacturers Life Insurance Company and Gabriel Shamaoun.

b. The individual respondents, Lenka Jugovic and Sabrina Datoo, are removed as parties to the proceeding.

c. The title of proceeding is amended in accordance with these two orders.