Nicolas Kisielewicz v. Toronto District School Board, 2010 HRTO 1087

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicolas Kisielewicz

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Sherry Liang
Date: May 14, 2010
Citation: 2010 HRTO 1087
Indexed as: Kisielewicz v. Toronto District School Board

1This is an Application filed on January 13, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Application alleges discrimination in employment on the grounds of race and ethnic origin as well as reprisal.

2The respondent originally named in the Application is the principal of the most recent school in which the applicant has been employed. The Toronto District School Board (the Board) was named as a respondent by the personal respondent and has filed a Response to the Application, as well as a Request for an Order During Proceedings. The Board asks that it replace the named personal respondent in these proceedings.

3The Board’s Request also asks for dismissal of the Application on the basis that the issues have been appropriately dealt with through a decision of the Ontario Teachers College on a complaint filed by the applicant, and that it would be an abuse of process for the Tribunal to proceed with the Application.

4The Board also requests dismissal of the Application on the basis of delay. It states that the date the alleged discrimination occurred is more than one year before the Application was filed.

5The applicant has not filed a Response to the Request nor a Reply, and the time for doing so has elapsed.

REMOVAL OF PERSONAL RESPONDENT

6On the basis of the material before me, I find it appropriate to remove the personal respondent as a party.

7In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out the following non-exhaustive list of factors that 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 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?

8Having regard to the considerations described in Persaud and other decisions of the Tribunal, the Tribunal finds it appropriate to remove the personal respondent. There is no suggestion that she was not acting in the course of her employment. The Board has agreed that it is the proper respondent and that the personal respondent was representing it and acting in the scope of her statutory duties and employment obligations. Having regard to the issues raised in the Application, I am satisfied that the Board would be capable of providing an appropriate remedy if a violation of the Code is established.

9I see no reason why the removal of the personal respondent would cause any procedural unfairness to the applicant. In sum, there is no compelling reason to continue the proceeding against the personal respondent and the style of cause is amended accordingly.

DELAY

10The Tribunal finds it appropriate to address the issue of delay as a preliminary matter. As indicated, the applicant did not file a Response to the Request, and has not responded to the Board’s submissions to dismiss the Application because of delay.

11The Tribunal directs the applicant to file written submissions on the issue of delay, in response to the Board’s Request. The applicant should explain why he states in answer to Question #7(c) on Form 1 that the last event occurred November 7, 2009. His written narrative describes acts of alleged discrimination which occurred on and prior to November 7, 2008. The applicant must explain why he did not file this Application until January 13, 2010, more than 14 months after November 7, 2008.

12The applicant’s written submissions must be delivered to the Board’s counsel and filed with the Tribunal by May 28, 2010. It is unnecessary for the Board to reply to the applicant’s submissions unless directed to by the Tribunal.

13If the applicant does not provide submissions, the Tribunal may decide the Board’s Request to dismiss on the basis of the material before it.

14I am not seized of this matter.