William Smyth v. Toronto Police Services Board, City of Toronto, Pawel Holubko, Jeffrey Ma, and Robert McInnis, 2009 HRTO 1513

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Smyth

Applicant

-and-

Toronto Police Services Board, City of Toronto, Pawel Holubko, Jeffrey Ma, and Robert McInnis

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: September 21, 2009

Citation: 2009 HRTO 1513

Indexed as: Smyth v. Toronto Police Services Board

1This Interim Decision addresses the naming of respondents in this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 (the “Code”). On his Application form, the applicant listed as respondents the Toronto Police Service, Officer #9930, 11 Division, Officer #9978, 11 Division, and Toronto Ambulance Services. The applicant also filed a Request for Order asking for the names of three police officers and two paramedics. No Response was filed on behalf of the Toronto Police Service or the Toronto Police Services Board.

RESPONDENTS’ NAMES

2The Tribunal issued an Interim Decision, 2009 HRTO 1029, which directed that the requested names be provided. The Interim Decision also stated as follows:

I am concerned about the failure of the Toronto Police Services to file a response. While I appreciate that there may be issues about whether the Toronto Police Services Board is liable for the actions of individual police officers and the legal status of the “Toronto Police Service”, this does not relieve the Board of its responsibility to respond to a human rights complaint filed by a member of the public where it is clear that person intended to name the legal entity responsible for police services in the City of Toronto. By naming the “Toronto Police Service” at 40 College Street, Toronto, Ontario, it seems clear that the applicant intended to do so. I note that the City of Toronto responded, even though it was apparently incorrectly named as Toronto Ambulance Service.

A copy of this Interim Decision shall be sent to the Toronto Police Services Board. The parties may make submissions on whether the names of the respondents should be amended to read: Toronto Police Services Board, Toronto Police Service, City of Toronto, and the full names of Ma, Holubko and MacInnis. Any submissions should be delivered to the other parties and the Toronto Police Services Board and filed with the Tribunal by July 20, 2009. The Toronto Police Services Board shall also file its Response by this date, which shall be accepted as its Response if it is named as a respondent. The attention of the Toronto Police Services Board is directed to Rule 5.5, which sets out the consequences of failure to respond to a Tribunal Application.

3The Toronto Police Services Board filed submissions opposing the correction of the style of cause to include it as a respondent, arguing that it is not responsible for the actions of officers under the Code, that the Application “can and should be more appropriately dealt with” under the Police Services Act, R.S.O. 1990, c. P.15, as amended, and that it did not discriminate against the applicant. In my view, these arguments do not affect whether the style of cause should be corrected to name “Toronto Police Services Board” rather than “Toronto Police Service” as a respondent. They can be raised by the Board later in the proceedings if it wishes. No other parties opposed the correction and there is no reason not to do so. Accordingly, the names of the respondents are amended as set out in the style of cause.

4Although the Board filed a substantive response to the allegations as part of its submissions, it has not filed a Form 2. It shall do so within seven days of the date of this Interim Decision.

ADDING PERSONAL RESPONDENTS

5The applicant alleges that he was discriminated against on the basis of disability when the police became involved in a medical incident. He says that the police denied him access to paramedics when he called 911 and asked for an ambulance. He states that he is “complaining about the practice of turning a medical crisis into a police matter”.

6Having obtained the names of the two paramedics who attended at his residence, the applicant seeks to add them as personal respondents. The City and the proposed respondents oppose this order, arguing that there are no allegations included that, if true, could result in liability against the individual ambulance attendants.

7The Tribunal has applied a two-part test to requests to add respondents: Greenhorn v. 621509 Ontario Inc. (Belleville Dodge Chrysler Jeep), 2006 HRTO 22; Pieters v. Liquor Control Board of Ontario, Store 568, 2007 HRTO 22; Marchese v. Fortinos, 2009 HRTO 25; McBounds v. Hiram Walker & Sons, 2009 HRTO 194. First, the Tribunal has considered whether there are allegations made in the application that could support a finding that the respondent violated the Code. Second, the Tribunal has examined whether the proposed respondent has demonstrated that its addition as a party at this stage in the process would impair its ability to make full answer and defence to the allegations, and that such prejudice could not be alleviated by any order the Tribunal might make. This test arose under the old Code, and has been applied under the new Code.

8The Tribunal has confirmed in other cases that factors other than those set out in the two-part test may be relevant. The issue was directly addressed (under the old Code) in Haynes v. Ottawa-Carleton District School Board, 2008 HRTO 26, at para. 18:

In my view, s. 39 (3) permits the Tribunal to consider factors other than prejudice where those factors bear on whether it is appropriate for the Tribunal to exercise its discretion to add a party… Other cases may present relevant factors beyond the issue of prejudice which will inform the exercise of the Tribunal’s discretion.

9One additional factor is whether there is a compelling reason to add an individual respondent, where there is also an organization sought to be made liable for the same conduct. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, the Tribunal held that an individual acting in the course of his or her employment for an organizational respondent should not be added as a respondent unless there is a “compelling juridical reason” to do so. The Tribunal stated as follows, 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.

10Subsequently, in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 set out a non-exhaustive list of factors to be applied when there is a request to remove an individual as a respondent, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct and whether the conduct of the individual respondent is a central issue in the proceedings; see also Winter v. Arnprior (Town), 2009 HRTO 713. In Boukort v. Securitas Canada Ltd., 2009 HRTO 890 at para. 6, the Tribunal held that the Persaud factors should be applied both to requests to add individual respondents and requests to remove them.

11Another significant factor the Tribunal has considered is the effect on the hearing process of adding the proposed respondent. The Tribunal has, for example, refused to add a proposed respondent where it would result in delay to the hearing process and would not advance the remedial purposes of the Code (Haynes, supra at para. 20) and where it was not made in a timely manner and would result in delay and prejudice to the hearing process (Sinclair v. London (City), 2008 HRTO 11).

12In my view, it is appropriate to restate the test to take into account the additional considerations the Tribunal has applied. When determining a request to add a respondent, the Tribunal should consider the following three questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

13Applying the revised test to the circumstances of this case, I will assume, without deciding, that there are allegations that could support a finding against the proposed respondents. However, I find that there is no compelling reason to add these individuals as respondents. There is no question of the City of Toronto’s liability for any violation of the Code. The allegations focus on general policies and the actions of the police officers. The individual actions of the paramedics are not central issues. There is, therefore, no compelling reason that they be respondents to this Application.

14Accordingly, the applicant’s Request to add two paramedics as individual respondents is denied.

15I am not seized.