Stephen Dubbin v. Toronto Hydro-Electric Systems, 2009 HRTO 1918

Human Rights Tribunal of Ontario

B E T W E E N:

Stephen Dubbin Applicant

-and-

Toronto Hydro-Electric Systems Respondent

INTERIM DECISION

Adjudicator: Sherry Liang Date: November 10, 2009 Citation: 2009 HRTO 1918 Indexed as: Dubbin v. Toronto Hydro-Electric Systems

1This is an Application filed on April 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application names Toronto Hydro-Electric Systems and nine individuals as respondents.

2By Interim Decision, 2009 HRTO 1394, dated September 2, 2009, the Tribunal directed the applicant to provide submissions stating how he believes each of the individual respondents have violated his rights under the Code, and how his allegations against the individual respondents raise issues within the Tribunal’s powers to decide.

3The Tribunal received his submissions on October 27, 2009. Having regard to those submissions and the material before it, the Tribunal finds it appropriate to direct the organizational respondent, Toronto Hydro-Electric Systems, to file a Response to the Application. It is unnecessary for the individual respondents to file Responses at this time.

4It is not plain and obvious that the allegations against the individual respondents are outside the Tribunal’s powers to decide. However, even if the allegations against the individual respondents concern matters within the Tribunal’s jurisdiction, the submissions of the applicant raise an issue about the appropriateness of proceeding against the individual respondents, on which the Tribunal requires further submissions.

5The Tribunal has stated, with respect to individual respondents, that “[t]he 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.”

6In determining whether to add or remove an individual respondent, the Tribunal considers 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?

7The 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 factors identified in Persaud v. Toronto District School Board, 2008 HRTO 31, 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: Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

8In light of the principles and decisions described above, the Tribunal wishes to have the submissions of the parties on the issue of whether it is appropriate to proceed with this Application against the nine individuals named in the Application: Kevin Lewis, Alexander Duggan, Rick DiCecco, John Silva, David O’Brien, Nora McCallister, Helia Ralph, Ave Lethbridge, and Ivano Labricciosa. The Tribunal therefore requests that the organizational respondent address, in its Response, the three questions listed above, as well as the factors identified in the Persaud decision. The applicant is directed to respond to the submissions of the organizational respondent on this issue in his Reply.

9The Tribunal notes that in his submissions, the applicant has identified an additional individual that he wishes to add as a respondent, John Camilleri, his union representative. The Tribunal will treat the applicant’s submissions as a request to amend his Application to add an additional respondent. This individual respondent is also not required to file a Response at this time. The union, the Canadian Union of Public Employees, Local One (“CUPE 1”) has filed a Request to Intervene. The Tribunal invites this individual respondent and/or CUPE 1 to make submissions on whether it is appropriate to add him as a respondent to these proceedings. The applicant is also directed to respond to these submissions in his Reply.

10The applicant has also identified an individual “Aimie”, for whom he does not have a last name or contact information. Rule 6.6 of the Tribunal’s Rules state that an Application “will not be dealt with in respect of a Respondent … that cannot be contacted” in accordance with the addresses provided in the Application. The Tribunal will not proceed with the Application with respect to this individual.

ORDER

11The Tribunal accordingly directs Toronto Hydro-Electric Systems to file a Response to the Application, by December 8, 2009. Its Response must include submissions as described above, on the appropriateness of proceeding with the Application against the individual respondents. The individual respondents are not required to file Responses pending further direction of the Tribunal, but may also file submissions on this issue if they wish.

12Submissions by John Camilleri and/or CUPE 1 on the applicant’s request to add this individual as a respondent must be provided to the other parties and the Tribunal by December 8, 2009.

13The applicant is directed to respond to the above submissions by filing a Reply by December 18, 2009.

14The applicant and the organizational respondent have indicated a willingness to attend mediation. A mediation will therefore be scheduled following receipt and review of the parties’ submissions.

15I am not seized of this matter.