Haynes v. Ottawa-Carlton District School Board, 2009 HRTO 126

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Corey Haynes

Complainant

-and-

Ottawa-Carlton District School Board

Respondent

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 4, 2009

Citation: 2009 HRTO 126

Indexed as: Haynes v. Ottawa-Carlton District School Board

APPEARANCES AND WRITTEN SUBMISSIONS

) Corey Haynes, Complainant ) Janet Haynes, ) Representative ) ) James White, Respondent ) Susan Ursel, ) Counsel ) Peter Wilson, Respondent ) Sarah Coleman, ) Counsel ) ) Irmela Murphy and Ottawa-Carleton ) Roger Mills, District School Board, Respondents ) Counsel )

1This Interim Decision addresses three Requests for Order during Proceeding filed by the respondents, James White, Irmela Murphy and Peter Wilson. These requests are supported by the Ottawa-Carlton District School Board.

2Dr. Janet Haynes, who represents her son Corey Haynes, opposes the requests. Each of the parties filed written submissions in support of their positions. An oral hearing took place by conference call on January 28, 2009 to afford the parties an opportunity to make any further submissions before a decision was rendered.

3At the conclusion of the conference call, I rendered a decision granting the request to remove the individually named respondents from the proceeding. The parties were advised that they would receive these written reasons following the call.

4This complaint was referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint was filed on behalf of the complainant with the Commission on June 12, 2004 when he was 15 years old and a high school student in the Ottawa-Carleton District School Board. The allegations, which are based on the grounds of race and disability, span the academic years during which he attended high school commencing in September 2003.

5The complaint alleges that the respondents infringed the complainant’s right to equal treatment throughout the course of his high school education. Mr. White was one of the complainant’s teachers, while Mr. Wilson and Ms. Murphy were the principal and vice-principal, respectively, of the high school the complainant attended.

6The respondents deny the allegations of discrimination. The Ottawa-Carleton District School Board acknowledges that at all material times, the individually named respondents were employees of the Board and acting within the course of their employment. The Board has assumed responsibility for the conduct of those employees should they be found to have violated the complainant’s rights under the Code.

7The Commission initially participated in the complaint after it was referred to the Tribunal but recently withdrew from the proceeding.

8Rule 14(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, which was adopted by the Tribunal in Garcia v. Tri-Krete, 2008 HRTO 288, the Tribunal set out a list of factors that may be helpful in assessing whether a personal respondent should be removed including:

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

b. 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?

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

d. 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?

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

9There is no question that the first three factors are met in this case. The corporate respondent is in the best possible position to remedy the kind of systemic discrimination that the complainant alleges is at the root of his experiences with individual Board employees.

10Dr. Haynes indicated in both her written material and her oral argument that she opposes the removal of the individual respondents and feels strongly that they should be held personally accountable for the individual acts of discrimination alleged against them. Dr. Haynes raised a concern about the range of remedies that would be available if the individuals were removed and whether the potential for public education would be negatively affected.

11The concerns raised by Dr. Haynes are important considerations in determining this request. However, in my view, the full range of remedial options and the capacity for public education would be unaffected by the removal of the individual respondents. The allegations are systemic in nature and if a finding is made in favour of the complainant, the Board will be in the best position to implement an effective remedy.

12In addition, the allegations of discrimination span a number of years and as a result, a number of employees of the Board are alleged to have engaged in discriminatory conduct throughout the complainant’s high school years. In his pleadings, for example, the complainant made allegations of a similar nature against several teachers other than the three named originally in this complaint. One of those teachers was the subject of a previous Interim Decision, Haynes v. Ottawa-Carlton District School Board, 2008 HRTO 26, where I denied a request to add her as a respondent. I see no utility in proceeding against any of the individually named employees in this matter, and significant unfairness where no rational basis exists for proceeding against some employees but not others.

13The role of the Tribunal is to ensure a fair, just and expeditious process for bringing this complaint to a final conclusion. In my view, those important objects can be achieved by removing the individually named respondents. The complainant’s right to a full hearing on the merits will not be affected and the full range of remedial orders will be available if the complainant is successful.

ORDER

14The Tribunal orders that Peter Wilson, Irmela Murphy and James White are removed as parties to this proceeding and the title of proceeding is amended accordingly.