Persaud v. Toronto District School Board, 2008 HRTO 31

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Persaud Complainant

-and-

Ontario Human Rights Commission Commission

-and-

Toronto District School Board, Anthony Masciello, Harry Rosen, Paul Corner, Roy Evely, Heidi Gollert and Suzana Greenaway Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 15, 2008 Citation: 2008 HRTO 31 Indexed as: Persaud v. Toronto District School Board

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

APPEARANCES

Ontario Human Rights Commission ) Prabhu Rajan, Counsel

Andrew Persaud, Complainant ) Roger Rowe and Tamara Joseph, Counsel

Toronto District School Board, Anthony Masciello, Harry Rosen, Paul Corner, Roy Evely, and Suzana Greenaway, Respondents ) John Bell and Sheila MacKinnon, Counsel

1This Interim Decision deals with the issue as to whether there is a sufficient basis in the amended pleadings to continue proceedings as against the following personal respondents: Anthony Masciello, Paul Corner, Harry Rosen, Roy Evely and Heidi Gollert.

2In submissions dated April 21, 2008, the Commission advised that it would no longer be proceeding as against personal respondents Anthony Masciello, Paul Corner, Harry Rosen and Roy Evely. The complainant relies upon these submissions. As a result, I hereby order that personal respondents Anthony Masciello, Paul Corner, Harry Rosen and Roy Evely are no longer parties to this proceeding.

3This leaves me to consider whether there is a sufficient basis to continue proceedings as against the personal respondent Heidi Gollert.

4Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para 42:

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.

5Applying 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.

6In this case, there is no issue that the first three factors favour removing Ms. Gollert as a personal respondent. The question, then, becomes whether there is a compelling reason to continue the proceeding as against Ms. Gollert and whether any prejudice would be caused by her removal.

7In my interim decision dated February 15, 2008, I ordered the Commission and the complainant to file hearing briefs “to clearly indicate for each personal respondent the particular means by which it is alleged that each of these individuals personally violated the Code”.

8With respect to Ms. Gollert, the Commission’s hearing brief alleges that she “condoned and continued Stewart’s inadequate and unfair investigation”, that she “accept[ed] Stewart’s findings and meted out severe, and disproportionate, discipline against [the complainant] while simultaneously acknowledging that the investigation was incomplete” and that she “made severe findings against [the complainant] without obtaining his version of events”. In response to the Tribunal’s May 1, 2008 decision, the Commission has now clarified that it is also alleging that Ms. Gollert failed to obtain, consider and investigate all possible explanations and instead improperly rushed to judgment regarding the complainant’s culpability. In its submissions, the Commission alleges that Ms. Gollert “condoned the discriminatory conduct [of the respondent Greenaway] by failing to critically consider and question respondent Greenaway’s actions” despite being respondent Greenaway’s superior and having the authority to exercise control over her and rectify her discriminatory conduct towards the complainant.

9The complaint in this matter alleges discrimination on the basis of race and colour in relation to the complainant’s treatment at, and eventual suspension from, Vaughan Road Academy and transfer to another school in the respondent School Board. As a result of a series of alleged incidents that occurred during the course of the 2004-05 school year, a former superintendent at the Board, Ms. Stewart, was retained to conduct an investigation. A significant number of staff and students were interviewed as part of the investigation during the period from June 29, 2005 to July 6, 2005. However, these interviews did not include the complainant or other members of his family. The circumstances surrounding the investigator’s failure, or inability, to interview the complainant or other members of his family is one of the many issues in this proceeding.

10On or about July 6, 2005, Ms. Stewart completed her investigation report and made certain findings and recommendations. Subsequently, on August 30, 2005, the current Superintendent, Ms. Gollert, wrote to the complainant’s mother to advise her of the investigation and to advise her that the complainant could not return to Vaughan Road Academy for the 2005-06 school year. Ms. Gollert requested that the complainant’s mother contact her to discuss alternative arrangements for the complainant’s school attendance, and concluded by stating that further disciplinary action could be taken once the Board completed its investigation. All parties appear to be in agreement that Ms. Stewart drafted this letter.

11In this context, I do not find that there is a compelling reason to continue this proceeding as against Ms. Gollert. Rather, the hearing briefs and the submissions filed by the parties indicate that Ms. Gollert was merely the instrument within the Board administration who communicated the results of the investigation to the complainant’s mother. While it is clear that the Commission and the complainant allege that the investigation was inadequate and unfair and that the action taken to remove the complainant from Vaughan Road Academy was disproportionate and unduly severe, and further allege that such conduct forms part of an overall pattern of discriminatory conduct because of the complainant’s race and colour, these are all allegations that speak to the potential liability of the respondent School Board.

12Ms. Gollert’s only other involvement is the allegation, in the Commission’s hearing brief, that Ms. Greenaway sent certain communications to Ms. Gollert and others, about the complainant’s conduct. However, as opposed to accepting uncritically or condoning such allegations, the hearing briefs and submissions filed by all parties indicate that Ms. Gollert and the respondent School Board instead appointed Ms. Stewart to investigate. Once again, while I appreciate that the Commission and the complainant will take issue with this investigation, I do not see this as a basis for continuing the proceeding as against Ms. Gollert personally.

13While Ms. Gollert, as Superintendent and therefore a senior administrator within the Board, may ultimately be found to have played some role in any discrimination that may be found, this is not sufficient to constitute a compelling reason to continue her involvement as a personal respondent.

14I further find that no significant prejudice would be caused to either the Commission or the complainant as a result of Ms. Gollert’s removal as a respondent to this proceeding. The School Board has already acknowledged that it is liable for any conduct of Ms. Gollert that may be found to be in violation of the Code or to have contributed to a Code infringement. It also is noteworthy that no specific remedy is sought personally as against Ms. Gollert, other than that she be held jointly and severally liable for any damages awarded and provide a written letter of apology together with all other respondents. As a result, I order that Ms. Gollert be removed as a party to this proceeding.

15In their submissions dated April 25, 2008, the respondents reiterate their position that Suzana Greenaway also should be removed as a personal respondent. The Commission correctly observes that the Tribunal did not request submissions from the parties as to Ms. Greenaway. However, I nonetheless have considered the respondents’ submissions on this issue.

16The Commission’s hearing brief alleges that the respondent Greenaway failed to obtain, consider and investigate all possible explanations regarding the events at issue and instead improperly rushed to judgment regarding the complainant’s culpability, that she evinced a tendency to conclude that the complainant had acted dishonestly and sometimes maliciously, that she made wholly inappropriate and unseemly comments about the complainant and assumed his guilt and indiscreetly and publicly reprimanded him, that she was suspicious of the complainant which included a tendency to consider the complainant’s actions suspiciously without obtaining his position and explanation, and that she targeted the complainant in various ways. Obviously, these are only allegations at this stage, and whether or not they are borne out will depend upon the evidence elicited at the hearing. Nonetheless, on the basis of the Commission’s hearing brief, the individual conduct of Ms. Greenaway clearly will be one of the central issues in this proceeding. Accordingly, I find that there is a compelling reason to continue the proceedings against her.

ORDER

17For all of the foregoing reasons, the Tribunal makes the following Order:

a) Personal respondents Anthony Masciello, Paul Corner, Harry Rosen, Roy Evely and Heidi Gollert be removed as parties to this proceeding.