Nacon Dioba v. Toronto Public Library, 2009 HRTO 165

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nacon Dioba

Applicant

-and-

Toronto Public Library, Kathy Gallagher Ross, Linda Mackenzie, and Nancy Marshall

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: February 17, 2009 Citation: 2009 HRTO 165 Indexed as: Dioba v. Toronto Public Library

INTRODUCTION

1The applicant alleges that the respondents discriminated against him on the grounds of race, ancestry, place of origin, ethnic origin, creed, sex and sexual orientation, with respect to the provision of services, goods and facilities, and that he was subjected to sexual harassment, solicitation/advance and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application describes an incident which occurred at the respondent library on October 18, 2008, and alleges that library staff harassed the applicant and unfairly involved security personnel to attend to him. The Application also generally refers to the fact that, over the past ten years, the applicant has written the respondent organization on numerous occasions regarding various concerns of harassment. The Application identifies the Chair, the Director and Administrative Coordinator of the library as personal respondents.

3The respondents have filed a Response and a Request for Order During Proceedings. The respondents ask the Tribunal to dismiss the Application because (i) it fails to make out a prima facie case of discrimination and (ii) parts of the Application are untimely. The respondents further request that the Tribunal remove the personal respondents from the Application. The purpose of this Interim Decision is to request submissions from the parties on the issues raised by the respondents.

TIMELINESS

4Subsection 34(1) of the Code provides:

If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2:

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

5In his Response to the Request for Order and Reply, the applicant details his experiences of alleged mistreatment by library staff over the past several years. Notwithstanding these additional details, the applicant expressly states in his Response that the subject-matter of this complaint is “specifically about the incident at the TPRL on Oct. 18, 2008” and the other details are simply offered to help the Tribunal see the “whole history”. However, in his Reply, the applicant requests that the Tribunal “accept” his “complaint against the Toronto Public Library for both, the present and old allegations.”

6Given the differing positions taken by the applicant in his Application, Response to Request for Order and Reply, the time period covered by the Application and the relationship between the various allegedly discriminatory incidents is unclear. In these circumstances, the applicant must indicate whether he wishes his Application to cover events that occurred more than one year before he filed the Application, and if so, how these incidents constitute a series of incidents related to the incident he alleges occurred within one year of filing his Application.

REQUEST TO REMOVE PERSONAL RESPONDENTS

7The respondents submit that the Tribunal should dismiss the Application as against the personal respondents.

8Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of “non-exhaustive” factors in considering 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?

9The Tribunal seeks the parties’ submissions regarding whether, and if so how, the above-noted factors apply to the request to remove the personal respondents.

PRIMA FACIE CASE

10The respondents submit that the Tribunal should dismiss the Application because it fails to make out a prima facie case of a contravention of any provisions of the Code.

11Based on a review of the applicant’s materials, it is not clear how the alleged concerns are connected to the applicant’s race, ancestry, place of origin, ethnic origin, creed, sex and sexual orientation. In order to best achieve the Tribunal’s objective of the fair, just and expeditious resolution of disputes brought before it, the Tribunal directs the applicant to provide written submissions with respect to the following issues:

(i) Does the applicant’s claim of discrimination cover events before October 18, 2008? If so, how do these incidents constitute a series of incidents related to the incident the applicant alleges occurred within one year of filing his Application?;

(ii) How do the allegations contained in the Application relate to the cited grounds of race, ancestry, place of origin, ethnic origin, creed, sex and sexual orientation and amount to harassment, solicitation/advance and reprisal as provided for in the Code; and

(iii) Is there a basis for continuing the Application against the personal respondents?

12The applicant must mail or courier these submissions to the respondents and file them with the Tribunal no later than 21 days from the date of this decision.

13Within 30 days of this decision, the respondents are directed to provide their submissions, if any, in response.

14After receiving these submissions, the Tribunal will determine whether or how to proceed with this Application, including whether to hear oral submissions of the parties on any of these issues.

15The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office. Pages 2 – 3 of the Guide set out sources of assistance that may be available to him.

16I am not seized of this matter.