Inward v. Ontario (Attorney General), 2009 HRTO 690

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Laura Inward

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General, Tamara Irwin, Director of Prosecutions, City of Toronto, and Director of Court Services, City of Toronto

Respondents

INTERIM DECISION

Adjudicator: Judith Keene

Date: May 26, 2009

Citation: 2009 HRTO 690

Indexed as: Inward v. Ontario (Attorney General)

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 Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General and Tamara Irwin. The Application alleges discrimination with respect to goods, services or facilities on the grounds of sex and family status. The incidents at issue involved an alleged refusal by the prosecutor, Ms. Irwin, to allow the applicant to proceed with a challenge to a parking ticket because the applicant had her infant with her. The event allegedly occurred on June 9, 2008.

2In her Response, counsel for the personal respondent raised jurisdiction arguments, and, in addition, indicated that the decisions and events at issue were the responsibility of Justice of the Peace J. P. Wright. In her Response, counsel for the Ministry of Attorney General took the position the province should not have been named as a respondent. In addition to raising jurisdiction arguments, counsel for the Ministry advised that prosecution for the relevant bylaw infraction was the responsibility of the Corporation of the City of Toronto, and that the personal respondent is not employed by or an agent for the Ministry.

3On April 20, 2009, counsel for the applicant filed two Requests for Order During Proceedings asking to amend the Application to add “the Director of Prosecutions for the City of Toronto, and “the Director of Court Services, Toronto” as respondents.

4A Reply to the Request was received from counsel the City of Toronto. The Reply opposes the addition of either Director as a respondent to this Application. It states that there has been no allegation of involvement by either Director in the Application, and that neither Director was aware of the Application until they received the Request for Order During Proceedings.

5The Tribunal, on its own initiative, or at the request of a party, may add parties to the hearing if it appears that they may have infringed a right under s. 36 of the Code. The Tribunal may add a party in order to provide for “fair, just and expeditious” resolution of an application, under s. 1.7 of the Tribunal’s Rules of Procedure. 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 applicant'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.

6In Marchese, the Tribunal noted that the second part of the test for adding a party 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, para 14).

7While 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.

8The 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, para. 12).

9In this case, a number of issues, some involving questions of jurisdiction, have been raised by the respondents already named. It would be inappropriate to consider these questions and make assumptions at this early stage without the benefit of argument from the parties.

10On a review of all the written material filed in this matter to date, if a breach of the Code were ultimately found, the proposed respondents could, depending on the circumstances, be the subject of findings or a Tribunal order. There has been no assertion of prejudice to the proposed respondents’ ability to respond to this Application. In the circumstances the Tribunal grants the Requests for Order adding the Director of Court Services, City of Toronto and the Director of Prosecutions, City of Toronto, as respondents to this Application.

11As noted above, the personal respondent has indicated that the decisions and events at issue were the responsibility of Justice of the Peace J. P. Wright. The Application contains allegations in respect of the Justice of the Peace’s actions in respect of the applicant. Counsel for the Ministry has filed submissions indicating that the Justice of the Peace “cannot be the subject of an application under the Code”.

12At this stage it is not possible to determine whether Justice of the Peace Wright’s actions were adjudicative or could be considered services within the meaning of the Code. If the latter, it appears that Justice of the Peace Wright may be a person affected by and therefore entitled to Notice of this Application. The respondent Ministry of the Attorney General will deliver a copy of the Application and this Interim Decision to the Justice of the Peace within 10 days of the date of this Interim Decision. Upon receipt, the Justice of the Peace may seek leave to intervene or participate in the Application in accordance with the Tribunal’s Rules.

13Finally, the Tribunal notes that counsel for the Ministry of Attorney General asserts the Ministry is not a proper respondent to the Application but has not filed a Request for Order During Proceedings seeking that relief. If the Ministry wishes to be removed as a respondent is should make a formal request for that relief and deliver it to the parties in accordance with the Tribunal’s Rules.

14I am not seized of this matter.