Ignacio Drenic v. The Governing Council of The Salvation Army in Canada, 2009 HRTO 1059

Human Rights Tribunal of Ontario

Between:

Ignacio Drenic Applicant

-and-

The Governing Council of The Salvation Army in Canada, City of Toronto, David McKeown and Phil Brown Respondents

Interim Decision

Adjudicator: Ena Chadha Date: July 16, 2009 Citation: 2009 HRTO 1059 Indexed as: Drenic v. Governing Council of the Salvation Army

1This Application was filed on April 27, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges that he experienced discrimination and reprisal in goods, services and facilities because of place of origin, ethnic origin and disability. There are two sets of respondents identified in the Application: 1) the City of Toronto, David McKeown and Phil Brown (collectively “the City respondents”); and 2) the Governing Council of the Salvation Army, Albert Quirante, Dennis Brown, George Hastings and Arthur Crumpton (collectively “the Salvation Army respondents”).

Request for Early Dismissal: Jurisdiction and No Prima Facie Case

2The purpose of this Interim Decision is to address the respondents’ request that the Tribunal dismiss the Application on a preliminary basis. The Salvation Army respondents also request the Tribunal dismiss the Application as against the personal respondents identified in the allegations against the Salvation Army.

3The respondents argue that the Tribunal should dismiss the Application because the Tribunal does not have jurisdiction to deal with the issues raised in the Application and, alternatively, because the Application fails to raise a prima facie case of a contravention of the Code.

4The respondents state that the Application is outside the Tribunal’s jurisdiction because the allegations pertain to matters of living conditions in the respondents’ shelters (such as bed bugs and smoking) and difficult interactions between the applicant and other shelter clients and staff. The respondents submit that the Application is an attempt on the part of the applicant to have the Tribunal inquire into general claims of unfairness. The respondents further argue that the Tribunal should dismiss the Application because the allegations do not make out a prima facie case of unequal treatment.

5The applicant rejects that the Application is outside the Tribunal’s jurisdiction. The applicant further denies that he has failed to raise a prima facie case of discrimination. He states that he experienced discrimination in the living conditions of the shelter. For example, he claims the exposure to smoke and lack of enforcement of the non-smoking policies adversely impacted his asthma. The applicant alleges that he was subjected to discriminatory comments by respondent staff because of his place of origin, ethnic origin and disability. The applicant further alleges that he experienced reprisal for making complaints about the personal respondents to both organizational respondents and that the organizational respondents failed to properly investigate his concerns. In particular, the applicant alleges that the City respondent ignored his written complaints seeking enforcement of its non-smoking policy.

6With respect to the issue of jurisdiction, the Application contains allegations of differential treatment and reprisal in the protected areas of goods, services and facilities on basis of the prohibited grounds of discrimination because of place of origin, ethnic origin and disability. In the circumstances, the Tribunal has jurisdiction over the allegations and therefore, the respondents’ request to dismiss the Application as outside the jurisdiction of the Tribunal is denied.

7At this preliminary stage of the proceeding, there is no “evidence” before the Tribunal, but only “allegations” as set out in the Application, Response, Replies and Requests. As such, the Tribunal must assess a request to dismiss an application because the application allegedly fails to make out a prima facie case of discrimination on the basis of the allegations and information put forth by the parties in their materials. In order to proceed with an application, it is sufficient at this stage if the applicant raises allegations which, if accepted as true, would be enough to establish a prima facie case: see Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22, and Capocci v. York Catholic District School Board, 2009 HRTO 107.

8In my view, the Application raises allegations which, if accepted as true, would be enough to establish a prima facie case of discrimination. Although the Application includes a myriad of concerns regarding the physical conditions of the shelter, the applicant also alleges that he experienced differential treatment in shelter services because of place of origin, ethnic origin and disability. Specifically, the applicant alleges that, in interactions with certain staff, he was subjected to discriminatory comments on the basis of place of origin, ethnic origin and disability and that the respondents ignored his health-related concerns. Further, the applicant alleges that he experienced adverse treatment because of his complaints to the organizational respondents and, in particular, the City respondent failed to take steps to investigate written complaints regarding his concerns.

9The respondents’ request to dismiss the Application on the basis that it fails to make out a prima facie case of discrimination is therefore dismissed, without prejudice to the respondents’ right to make a further request after the applicant has presented his evidence at the hearing.

Request for Removal of Personal Respondents

10The respondent Salvation Army seeks to remove four individuals associated with its organization that have been named as personal respondents in the Application.

11In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors for consideration when assessing whether or not a personal respondent should be removed from a Tribunal proceeding:

• Is there 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 [is] 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?

12In this case, the individuals named in the Application as personal respondents are employees of the organizational respondent, the Salvation Army, and the alleged conduct is described as occurring in such employment capacity. The Salvation Army submits that the Application narrative does not make a single, direct reference to personal respondent Dennis Brown.

13The applicant did not address the respondent Salvation Army’s request to remove the personal respondents. There does not appear to be any issue regarding the Salvation Army’s responsibility for the conduct of its employees. There appears to be no issue as to the ability of the Salvation Army to respond to or remedy the alleged Code infringement if liability is established. There is no basis to conclude that there would be any prejudice to any party as a result of removing the personal respondents. Further, based on my review of the Application, there does not appear to be any direct reference or allegation against personal respondent George Hastings.

14In the circumstances, I find it is not necessary to involve the personal respondents as individual parties in order to have a fair, just and expeditious resolution of the merits of this complaint. Moreover, there are serious concerns in maintaining an application against an individual named as a personal respondent who is in no way referenced in the allegations. Given that the City respondent did not make its own request to remove personal respondents, this order pertains only to the personal respondents identified as related to the respondent Salvation Army. As such, the Tribunal directs that Albert Quirante, Dennis Brown, George Hastings and Arthur Crumpton be removed as personal respondents and the style of cause is amended accordingly.

15I am not seized of this matter.