Ignacio Drenic v. The Governing Council of the Salvation Army in Canada, City of Toronto, 2009 HRTO 1819

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ignacio Drenic

Applicant

-and-

The Governing Council of the Salvation Army in Canada, City of Toronto

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: October 30, 2009

Citation: 2009 HRTO 1819

Indexed as: Drenic v. Governing Council of the Salvation Army

1This is an Application filed on March 23, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2By letter dated September 22, 2009, the applicant was advised that the Tribunal may refuse to take any further steps on a number of Applications he has filed, unless he immediately provide a written undertaking respecting his conduct towards Tribunal staff, adjudicators and other parties. The form of the undertaking required was sent to the applicant, and returned with the applicant's electronic signature. The Tribunal accepted the undertaking.

3In the circumstances, the Tribunal will proceed to deal with this Application.

4By Interim Decision dated July 16, 2009, the Tribunal removed four individual respondents associated with the respondent the Salvation Army: 2009 HRTO 1059. Following that Interim Decision, the Tribunal received the applicant's Reply in which he addresses the Salvation Army's request to remove those respondents. As well, the applicant filed a Request for Order in which he seeks to keep those individual respondents as parties to his Application and add nine additional individual respondents.

5As the applicant's submissions on the removal of the four individual respondents were not before the Vice-chair who issued the Interim Decision, I have reviewed them. Upon my review, I am satisfied that they do not raise any doubt about the conclusions reached in that Interim Decision. At their highest, the allegations against three of the four individuals could not support a finding that the proposed respondents violated the Code, resting essentially on assertions that they did not take action on the applicant's complaints about the services provided by the Salvation Army. With respect to the fourth individual, the applicant alleges that he "acted in a harassing manner and threatening manner toward me". He states that this individual "is proven for being serious racist toward immigrants from East Europe, Asia, Middle East and Africa" and that he was fired from another shelter "because of his racist tendencies and harassment of the shelter clients."

6I am satisfied that these allegations do not provide a basis to continue the Application against this individual. They consist of a sweeping and unspecified assertion of harassment against the applicant, combined with an equally sweeping assertion of past conduct unrelated to the applicant. These assertions in themselves also could not support a finding that this proposed respondent violated the Code and do not establish a compelling reason to continue the proceeding against this individual respondent. I therefore confirm the conclusion of the Vice-Chair in the July 16 Interim Decision.

7I turn to consider the applicant's request to add nine additional individual respondents. The Tribunal recently held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that 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?

8The application of the first stage involves considering whether there are allegations made in the application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, 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. The factors from Persaud are applicable to both requests to add individual respondents and requests to remove them. 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, and prejudice to the other parties.

9The Salvation Army has responded to the applicant's Request.

10The applicant's Request for Order does not provide a basis for adding the additional nine respondents. The applicant makes sweeping and unspecified assertions of a "joint conspiracy", fabrication of reports or emails, bad faith actions, failure to act on complaints made about services and, in the case of one individual, that "he used racist and numerous other derogative [sic] tricks to harass and inflict me in a negative way."

11I am satisfied that his assertions do not amount to allegations that could support a finding that any of the proposed respondents has violated the Code.

12In any event, I am also satisfied that the factors identified in Persaud do not support adding the nine individuals as respondents to this Application.

THE CITY OF TORONTO'S REQUEST FOR ORDER

13The City of Toronto (the City) has also filed a Request for Order, dated August 24, 2009, in which it seeks the removal of the remaining two individual respondents. In its Request, the City refers to the factors cited in Persaud as considerations in assessing whether or not to remove a personal respondent from a Tribunal proceeding. As set out in the Interim Decision, these factors are:

• 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?

14Based on a consideration of these factors, as well as the submissions in the City's Request and the response to the Request filed by the applicant (on Form 3 – Reply to a Response), the Tribunal finds it appropriate to remove David McKeown and Phil Brown as respondents. The applicant's response does not address the substance of the issue but rather, consists mainly of insults against counsel for the City, as well as against the personal respondents

15The City accepts responsibility for the alleged conduct of these respondents, and there is no issue about the City's ability to respond to, or remedy, any alleged infringement. There is no basis to conclude that there would be any prejudice to any party from removal of these respondents. They remain employed by the City and are available to testify.

16The nature of the allegations against these individual respondents does not amount to a compelling reason to continue the proceeding against them.

17In conclusion, 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 the Application. The Tribunal directs that David McKeown and Phil Brown be removed as personal respondents and the style of cause is amended accordingly.

18A copy of the Tribunal's letter of September 22, 2009 and the applicant's undertaking dated October 16, 2009 will be sent to the respondents along with this Interim Decision.

19I am not seized of this matter.