Palatty Poulose v. Dufferin-Peel Catholic District School Board, 2017 HRTO 1390

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sebastian Palatty Poulose Applicant

-and-

Dufferin-Peel Catholic District School Board Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: October 19, 2017
Citation: 2017 HRTO 1390
Indexed as: Palatty Poulose v. Dufferin-Peel Catholic District School Board

APPEARANCES

Sebastien Palatty Poulose, Applicant Self-represented

Dufferin-Peel Catholic District School Board, Respondent Jean-Paul Alexandrowicz, Counsel

Introduction

1This is an Application filed on November 21, 2016 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, ancestry, place of origin, ethnic origin and age.

request to dismiss

2The respondent filed a Request for an Order During Proceedings (“respondent’s request”) on February 15, 2017 seeking the dismissal of the applicant’s allegations because:

a. it appears the Application has no reasonable prospect of success;

b. some of the allegations appear to be untimely; and

c. the substance of the Application has been properly dealt with in a grievance arbitration proceeding.

3The applicant stated at the outset of the hearing that he was proceeding only with respect to the 2015 allegation, and as such the parties did not make submissions with respect to delay. As a result, the remaining allegations are dismissed.

4The applicant opposed the respondent’s request for dismissal. He asserted that when he receives document disclosure from the respondent the documents will show that his Application has a reasonable prospect of success.

5The Tribunal issued a Case Assessment Direction (“CAD”) dated April 6, 2017 directing a preliminary hearing to determine the issues raised by the respondent, and also to determine if the individual respondent should be removed as a party.

6In accordance with its usual practice the Tribunal held a summary hearing by conference call, and all parties participated and made oral submissions.

background

7The applicant is an occasional teacher with the respondent school board. Not for the first time, the respondent interviewed the applicant for a long term occasional (LTO) job on November 30, 2015. The applicant alleges the respondent school board did not hire him because of his race, colour, ancestry, place of origin, ethnic origin and/or age.

8The respondent school board denies this and submits the applicant was not successful in his interview.

9The applicant has filed several grievances in respect of unsuccessful interviews in November 2012, July 2013, November 2013 and November 2015. The respondent school board alleges the parties settled Grievance 14.04 dated February 8, 2014 by Minutes of Settlement (“MOS”) dated June 8, 2016. The respondent alleges the MOS also settled the applicant’s dispute with respect to his November 30, 2015 interview that is the subject of this Application, which the applicant denies.

10The MOS state that the respondent school board is required to:

a. place the applicant in a full semester secondary LTO assignment in the second semester of the 2016-17 school year or, should no such assignment exist, place him in the next longest assignment for which he is qualified; and

b. if the applicant receives a successful evaluation for that LTO assignment, place the applicant on the Board’s LTO List effective July 1, 2017.

Request to Remove the Personal Respondent

11Rule 1.7(b) of the Tribunal’s Rules provides that 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.

12The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 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:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

In considering whether any compelling reason exists to continue the proceeding against a personal 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.

13The Application named as a personal respondent a principal who was one of the interviewers in the 2015 interview. The respondent submits she should be removed as a party as she was not acting outside the scope of her duties, and the applicant made no specific allegations against her. In addition, the respondent school board responded to the allegations and would be liable for any remedy the Tribunal ordered.

14The respondent further submits the respondent school board is not shirking its responsibility and by entering into a settlement of the grievance, it has already accepted that it is responsible for placing teachers on the LTO list.

15Finally, the respondent submits the personal respondent is an active employee of the respondent school board and is available to be called as a witness.

16The applicant objects to the respondent school board’s request to remove the personal respondent because she has to be available to correct her interview feedback that he submits is full of errors. The applicant did not make specific submissions with respect to how the individual respondent was acting outside the scope of her employment, other than that she wrote information down wrong.

17Having considered the parties’ submissions, it is my view that the personal respondent should be removed as a respondent.

18As in Persaud, the personal respondent in this case was simply carrying out her employment duties. There is nothing to support a finding that it would be appropriate to make an order against her in her personal capacity as well as against the corporate respondent. The applicant makes no allegations specifically against the personal respondent that would constitute a Code violation. In addition, the corporate respondent has accepted vicarious liability in this case.

19The personal respondent is removed, and I have amended the title of proceedings accordingly.

request to dismiss - Section 45.1

20Section 45.1 of the Code reads as follows:

The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

21The Tribunal has held that, in determining whether to dismiss an application pursuant to s.45.1 of the Code, it ought to consider: (1) whether there was another “proceeding” and (2) if so, whether that proceeding “appropriately dealt with the substance of the application.”

22I have no difficulty concluding that the grievance arbitration was another proceeding. See Wei v. Seneca College of Applied Arts and Technology, 2010 HRTO 2046; Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690; and Paterno v. Salvation Army, 2011 HRTO 2298 at para. 22. The question remains whether the grievance arbitration appropriately dealt with the substance of the Application.

23The case of British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 explains the importance of the finality of litigation and the avoidance of multiple proceedings. The Tribunal is not to stand in appeal of other decision-makers. In addition, an applicant should not be allowed to re-litigate a case. See Gomez v. Sobeys Milton Retail Support Centre, 2011 HRTO 2297.

Parties’ Submissions with respect to section 45.1 and abuse of process

24The applicant submits he did not file a grievance with respect to his November 2015 interview, and the MOS relate to the first three interviews, not the November 2015 interview. With the Tribunal’s consent he filed a copy of an e-mail from his union president, dated October 12, 2016, that confirmed no grievance was filed with respect to the November 2015 interview and he is out of time to do so. The applicant submits the MOS cannot have settled the matter with respect to his 2015 interview because the grievance was filed before the 2015 interview.

25The applicant further submits the respondent school board did not resolve the subject matter of this Application because the MOS said he would get a full year LTO, yet the respondent school board did not inform him of any but only told him one may arise later. The applicant also advised the Tribunal that he injured both his arms, saw a surgeon in June 2017 and may not teach for a time because of possible surgery.

26The respondent school board submits the applicant’s grievances assert that the respondent school board improperly disadvantaged him by not putting him on its LTO list, and allege violations of the collective agreement including the Code. The respondent submits the grievances, particularly the 2014 grievance, deal squarely with the issue before the Tribunal. In addition, the June 8, 2016 MOS includes the remedy the applicant seeks in the Application, namely that he be placed on the LTO list.

27As set out above, the June 8, 2016 MOS of the 2014 grievance state that the respondent school board is required to:

a. place the applicant in a full semester secondary LTO assignment in the second semester of the 2016-17 school year or, should no such assignment exist, place him in the next longest assignment for which he is qualified; and

b. if the applicant receives a successful evaluation for that LTO assignment, place the applicant on the Board’s LTO List effective July 1, 2017.

28The respondent school board submits that the applicant’s grievances and the resulting MOS are not about interviews but the respondent school board’s refusal to put the applicant on the LTO list. It submits this is an ongoing complaint as opposed to a complaint about a discrete event. It submits that in light of the breadth of the grievance the settlement of it has an effect on future events including the 2015 interview.

29The respondent also submits this Application should not be allowed to proceed because a dispute resolution process was established in the MOS. Specifically paragraph 5 of the MOS provides that the arbitrator remains seized with respect to any questions regarding the implementation or interpretation of the MOS.

30Finally, the respondent also submits that the fact that the union signed the MOS on behalf of the applicant is tantamount to the applicant having signed them, and therefore allowing the Application to proceed would amount to an abuse of process.

Analysis and Decision with respect to 45.1 and abuse of process

31In considering section 45.1 of the Code, the Tribunal has considered: (1) was there another proceeding; and (2) if so, did it appropriately deal with the substance of the application? See, Campbell v. Toronto District School Board, 2008 HRTO 62 at para. 64. It has recognized that section 45.1 is discretionary.

32As stated above, there is no doubt that arbitration of a grievance is a “proceeding” under section 45.1, (See, for example, Delos Santos v. Maple Lodge Farms, 2009 HRTO 1690 at para. 20 and Paterno v. Salvation Army, 2011 HRTO 2298 at para. 22). The parties also did not dispute that the June 2016 Minutes of Settlement resulted from a “proceeding.” The Minutes of Settlement were achieved as a result of the union bringing a grievance on behalf of the applicant with respect to his 2013 interviews.

33In my view, it is not clear that the June 2016 MOS contemplated the November 2015 interview, in relation to which the applicant confirmed he did not bring a grievance. The MOS contemplate the applicant participating in a November 2015 interview, but do not appear to resolve any alleged discrimination that might occur in that interview, and could not have done so given that it occurred after the MOS were signed. As such, in my view, the MOS did not “appropriately dealt with” the substance of this Application.

deferral

34Having decided that the MOS did not appropriately deal with the substance of this Application, I turn now to the issue of deferral.

35The MOS contemplate a remedy the applicant seeks in this Application, namely that he be placed on the LTO list. As such, it appears that until the applicant has completed his LTO assignment and the parties, if necessary, have availed themselves of the services of the arbitrator who remains seized in the arbitration matter, this Application should be deferred.

36Rules 14.1 and 14.2 of the Tribunal’s Rules of Procedure state:

14.1 The Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative, at the request of an Applicant under Rule 7, or at the request of any party.

14.2 Where the Tribunal intends to defer consideration of an Application under Rule 14.1, it will first give the parties, any identified trade union or occupational or professional organization and any identified affected persons, notice of its intention to consider deferral of the Application and an opportunity to make submissions.

37This Application shall be deferred unless any party objects by providing its reasons in writing by no later than November 1, 2017.

Reasonable Prospect of Success

38In light of my deferral decision, I have not made any decision at this stage with respect to the issue of this Application having no reasonable prospect of success.

order and direction

39The Tribunal makes the following order:

a. The applicant’s pre-2015 allegations are dismissed.

b. The respondent’s request for dismissal pursuant to section 45.1 of the Code is dismissed;

c. This Application shall be deferred if neither party raises any objection by delivering written submissions to the other party and filing them and a Form 23 Statement of Delivery with the Tribunal by no later than November 1, 2017.

40I am not seized.