Mitchell v. London Transit Commission, 2009 HRTO 682

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rory Mitchell

Applicant

-and-

London Transit Commission, Dennis Corkery and Jack Miller

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: May 25, 2009

Citation: 2009 HRTO 682

Indexed as: Mitchell v. London Transit Commission

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), on February 6, 2009, against London Transit Commission, the corporate respondent. The application alleges discrimination with respect to goods, services or facilities on the grounds of race, colour, ancestry and ethnic origin. The incidents at issue involved a driver and an inspector employed by the corporate respondent. The last event allegedly occurred on September 28, 2008.

2On April 24, 2009, counsel for the applicant filed a Request for Order During Proceedings asking to amend the Application to add two personal respondents identified as “Dennis Corkery, bus driver”, and “Jack Miller, Inspector”. The Request was delivered to the corporate respondent and its counsel, and to each personal respondent, care of the corporate respondent. The Request for Order During Proceedings indicates that any response to the Request was due fourteen days after delivery. There has been no response.

3The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application. As noted in Marchese v. Fortinos, 2009 HRTO 25, the Tribunal will not add a proposed party in a perfunctory manner or as a matter of formality. Rather, it will decide whether it is appropriate to do so based on the parties’ materials and arguments. The Tribunal in Marchese noted that a two-part test had been used by the Tribunal, the first part being whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the complainant's rights, and the second part being whether the addition of the proposed respondent would cause substantial prejudice to that party’s ability to make full answer and defence to the allegations that cannot be alleviated by procedural orders of the Tribunal.

4In Marchese, the Tribunal noted that the second part of the test for adding a party test was developed and applied to complaints that were filed with the Ontario Human Rights Commission under the old Part IV of the Code. In those complaints, there were a number of events that lengthened the time between the filing of a complaint and its referral to the Tribunal. By contrast, under the current system, “a person who believes that any of his or her rights have been infringed is required to file an application directly with the Tribunal and there is a one-year limitation period (subsection 34(1))” (Marchese, above, at para. 14).

5While not explicitly rejecting the applicability of the second part of the test, the Tribunal in Marchese applied only the first part. I agree with this approach. Circumstances may arise in which a proposed party might claim prejudice because of delay under the current system, but these cases are likely to be rare; in my view there is no need under the new system to routinely consider the possibility of prejudice unless the proposed party can demonstrate unusual circumstances that would lead the Tribunal to conclude that there is prejudice that cannot be alleviated by procedural orders of the Tribunal.

6The Marchese decision also sets out the context in which a request to add a party is considered: at this preliminary stage of the proceeding, there is no evidence before the Tribunal, but only allegations. A party should only be added if there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code.

The threshold is a low one; the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code…On the other hand, although the threshold is low, on the face of the record, there must be a higher standard than mere puffery or frivolous allegations. Marchese, above, at para. 12.

7The actions of the proposed respondents in this matter could, if proven, amount to an infringement of the Code. In the circumstances, the applicant’s request to add the two personal respondents is granted.

ORDER

8Dennis Corkery and Jack Miller are added as personal respondents to this Application.

9The London Transit Commission is ordered to provide the Applicant and the Tribunal within ten days of the date of this Interim Decision, with the address for service of the personal respondents.

10Rule 8 of the Tribunal’s Rules of Procedure gives the personal respondents 35 days after this decision is sent to serve and file a Response to the application. Under the circumstances, the date for response by the personal respondents is extended to 45 days from the date of this Interim Decision.

11I am not seized of this matter.