Winter v. Arnprior (Town), 2009 HRTO 713

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Igor Winter and James MacIntyre

Applicants

-and-

The Corporation of the Town of Arnprior and Terry Gibeau

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: May 28, 2009

Citation: 2009 HRTO 713

Indexed as: Winter v. Arnprior (Town)

APPEARANCES

Igor Alexander Winter and James MacIntyre, Applicants ) Phillip MacAdam, Counsel

Town of Arnprior, Larry Donaldson, Nancy Black, Jack Lammert, Mark Willmer, and Eric Burton, Respondents ) Peter S. Mirsky, Counsel

Terry Gibeau and Tom Peckett, Respondents ) Don Sullivan, Counsel

Janet Collins and Monique Ouellet, Respondents ) Fiona Porter, Counsel

Walter Stack, Respondent ) Steven Menard, Counsel

Reasons for Decision

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code") alleging discrimination in goods, services and facility on the basis of sexual orientation and marital status and reprisals against the applicants. This Interim Decision addresses the respondents' Requests that the Application be dismissed as against the ten personal respondents. A hearing was held in Ottawa on May 6, 2009 to hear submissions on this issue and other case management matters. In a prior Case Assessment Direction, I found that it was appropriate to hear argument on the removal of the personal respondents as a preliminary matter.

2The applicants, a gay male couple, purchased a property in late 2005 that is partly in the Town of Arnprior (the "Town") and partly in the adjacent township of McNab/Braeside. The respondents are the Town, its Mayor (Gibeau), Reeve (Stack), Town councillors (Black, Lammert, Willmer, Peckett and Burton), Chief Administrative Officer (Donaldson), Clerk (Ouellette) and Director of Public Works (Collins).

3A trail, advertised on various maps, ran through the property at the time the applicants purchased it. In March 2006, the Town agreed to no longer promote the trail on the property. The applicants allege that despite the fact that they have posted "no trespassing" signs and installed a security fence, members of the Arnprior community continue to trespass on their property. Moreover, they allege, they have been subject to homophobic harassment and vandalism by trespassers and others near the property.

4The principal allegations in the Application are that the respondents took the following actions, which they allege were "fuelled by an underlying homophobia":

• The respondents acted with undue delay in removing references to the property in the trail descriptions.
• The Town has not been helpful in dealing with the alleged trespassing and criminal harassment. Members of council did not actively oppose "hate crimes and hate motivated activities" despite the applicants' request to do so.
• The Town failed to respond to a request by the applicants to fly the rainbow flag for Pride Week.
• The Town has refused to service a hydrant in front of the house and threatened to disconnect it.
• The respondents directed the Arnprior detachment of the OPP not to deal with the applicants and required that they obtain service from the Renfrew detachment.
• The Mayor wrote a letter to the Arnprior Chronicle-Guide which led to further homophobic harassment, and also made statements to the media denying that the Town's actions were motivated by homophobia.

5It is not clear from the Application itself how each personal respondent is alleged to have violated the Code. The Application should have made this clear, so that each could properly respond to the allegations against him or her.

6In the circumstances, I directed counsel for the applicants to set out at the hearing the actions of each personal respondent that are alleged to have violated the Code. The allegations are summarized as follows:

• Every member of Council is alleged to have violated the Code through participation in Town decisions regarding the fire hydrant, the removal of the trail from maps, the direction to the Arnprior OPP not to respond to the applicants' calls, the reaction to the request to fly the pride flag and in ignoring or not replying to correspondence.
• The Mayor, Gibeau, is alleged to have violated the Code through various statements to the media, his letter to the Arnprior Chronicle-Guide, and statements during a meeting.
• All three Town staff members are alleged to have violated the Code by censoring correspondence and refusing to present it to council.
• Collins, the Director of Public Works, is alleged to have violated the Code by making the decision to disconnect the water service to the fire hydrant and writing to the applicant Winter in this regard.
• Donaldson, the Chief Administrative Officer, is alleged to have made the decision that the Town of Arnprior would not respond to fire alarms at the applicants' property and told the media about it.

7The respondents rely principally upon the Tribunal's decisions under the old Code in Sigrist and Carson v. London Catholic District School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31, in support of their request that the Application be dismissed as against the personal respondents.

8In Sigrist the Tribunal refused a request to add various personal respondents, stating as follows at para. 42:

The 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. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for "any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

9In Persaud, the Tribunal expanded on these principles as follows, at para. 5:

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing 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 [is] 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?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

10In this case, the Town is a party and has clearly indicated that it accepts liability for any violation of the Code in the provision of municipal services. While the Town argues that some of the allegations against the Mayor relate to actions that he took while he was not acting in his capacity as mayor, it agrees that it is vicariously liable for anything that he did while acting as mayor.

11The applicants submit that the conduct of each of the personal respondents is a central issue in the Application, and that the Tribunal should impose specific remedies, both damages and for future compliance, against each of them. They argue that someone must be held personally responsible for what occurred to deter future conduct. They suggest that if the Tribunal dismisses the Application against these personal respondents, it will send the message that discrimination will go unremedied.

12I deal first with the request to remove the three employees. In my view, there is no compelling reason to continue the proceeding against them. The alleged actions were clearly within the scope of their employment and their actions are not central to the applicants' claims of discrimination. They all remain employees of the Town, and the Tribunal can require training or other such remedies if discrimination is found and such remedies are determined appropriate. Their role, even as alleged, was primarily in conveying decisions made by others. The applicants have provided no compelling reason that the Application should continue as against them.

13Similarly, there is no compelling reason to include the members of Council on the basis of their mere participation in decisions made on behalf of the Town. Except for the Mayor, there are no specific actions alleged other than their collective decisions. This does not provide a basis for continuing this Application as against them, in light of the principles set out in Persaud.

14However, in view of the centrality of Mayor Gibeau's role in the alleged discrimination to the applicants' theory of the case, I find that it would not be appropriate to dismiss the Application as against him at this stage of the proceedings. I appreciate that there will be various arguments, based on both facts and law, about whether anything he did violated the Code. I also make no comment at this stage about whether any of the Mayor's actions should be viewed as taken as an individual or on behalf of the Town. In view of his particular role in the events, it would not be appropriate to remove him as a party before hearing any evidence.

ORDER

15Larry Donaldson, Janet Collins, Walter Stack, Nancy Black, Jack Lammert, Mark Willmer, Tom Peckett, Eric Burton and Monique Ouellet are removed as parties to this proceeding and the style of cause is amended accordingly.