Loojune v. Toronto Transit Commission, 2009 HRTO 1294

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Narine Loojune

Applicant

-and-

Toronto Transit Commission

Respondent

INTERIM DECISION

Adjudicator: Mark Hart

Date: August 21, 2009

Citation: 2009 HRTO 1294

Indexed as: Loojune v. Toronto Transit Commission

1This is an Application dated June 17, 2009 under section 53(5) of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the status of the individual identified by the applicant as “John Doe” on the Application form.

3The underlying complaint in this matter was filed with the Ontario Human Rights Commission on December 23, 2005 and alleges discrimination in the provision of goods and services by the respondent (the “TTC”) because of race, colour and ethnic origin. The incident at issue relates to the refusal of a TTC bus driver to accept a transfer presented by the applicant. The complaint alleges that the applicant asked the bus driver for his name, which was refused.

4The complaint as drafted by the applicant names “John Doe” as a personal respondent in addition to the TTC. However, the Commission’s records show that the complaint was issued only as against the TTC.

5The Application as filed with the Tribunal identifies “John Doe” as a personal respondent in addition to the TTC. When filing its Response, the TTC objected to the applicant’s attempt to add “John Doe” as an additional respondent.

6On July 31, 2009, the Tribunal sent correspondence to the parties confirming receipt of the Application. The Tribunal directed the respondent TTC to provide the name and address of the bus driver in regard to the subject matter of the complaint to the Tribunal and the applicant within ten days.

7On August 13, 2009, the respondent TTC objected to the Tribunal’s direction and submitted that it is entitled to have the matter considered by the Tribunal and ruled upon.

8The respondent objects to the applicant’s attempt to add “John Doe” as a personal respondent on the basis that the applicant did not name “John Doe” as a respondent in his complaint and made no attempt to add “John Doe” as a respondent during the three years that his complaint was at the Commission. This clearly is not accurate. The complaint as drafted by the applicant did in fact identify “John Doe” as a personal respondent, but the Commission only accepted the complaint as having been filed as against the TTC.

9The TTC also objects on the basis that the applicant has not followed the proper procedure for the addition of a respondent to his Application. This is an accurate observation. Rule 12.4 of the Tribunal’s Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Human Rights Code (the “Transitional Rules”) states:

Where an Applicant wishes to add parties, combine two or more complaints to be dealt with together as a single application, or, having regard to Rule 12.3, amend the complaint, the Applicant may identify any such requests in their Application.

10In the Tribunal’s transitional process, the parties to the Commission complaint are the parties to the application and transitional applications are processed on this basis. However, an applicant is entitled to file a Request for Order (Form TR-4) seeking to add additional parties to the Application.

11The conundrum for the applicant is that, in order to properly give notice to the unnamed individual identified only as “John Doe” in order to attempt to add this individual as a respondent, the applicant needs to serve the Request for Order on that individual. This the applicant cannot do without being apprised of the name and address of this individual, which is knowledge within the possession of the respondent TTC. In its Response as filed with the Commission, the TTC has included transcripts of calls made by the bus operator to the TTC dispatcher and to his supervisor, in which the bus operator is identified on one occasion as “Mike” and on another occasion as “Mark”. The TTC clearly has records that would identify the name of the bus operator and should also have this person’s address for service.

12Pursuant to Rule 4.3(k) of the Transitional Rules, the Tribunal has the power “to require a party or other person to produce any document, information or thing” in order to ensure the fair, just and expeditious resolution of an application.

13Accordingly, the Tribunal hereby orders the respondent TTC to disclose to the applicant and to the Tribunal the name of the bus operator who refused the applicant’s transfer and an address for service, so that the applicant can identify this individual and serve him with a Request for Order (Form TR-4) if the applicant wishes to request the addition of this individual as a personal respondent to the Application. If counsel for the respondent TTC is prepared to accept service of the TR-4 on this individual’s behalf, then counsel may so indicate to the applicant and the Tribunal and need only disclose this individual’s name.

14I am not seized.