N.P. v. Ottawa-Carleton District School Board, 2010 HRTO 1540

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.P. by his litigation guardian, S.P.

Applicant

-and-

Ottawa-Carleton District School Board and Patricia Sullivan

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: July 19, 2010

Citation: 2010 HRTO 1540

Indexed as: N.P. v. Ottawa-Carleton District School Board

1This Application was filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on January 12, 2010, alleging discrimination on the basis of ethnic origin and disability in the area of goods, services and facilities.

2This Interim Decision addresses the following two Requests for Orders made by the respondents: 1) removal of two individual respondents and 2) deferral of the Application.

3The Tribunal has received the applicant’s May 7, 2010 Reply, which included submissions in response to the respondents’ Request for deferral. The applicant has not filed a Response to the respondents’ Request to remove the individual respondents and the time for filing submissions has elapsed.

Removal of a Respondent

4The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

5The organizational respondent submits that both individual respondents were acting in the course of their employment, that the organizational respondent is vicariously liable for the individual respondents’ actions, and that there is no issue as to the organizational respondent’s ability to provide a remedy. The organizational respondent has agreed to assume responsibility for the actions of respondents should any violations of the Code be determined.

6I find that all the factors present in favour of removal of the individual respondent Barbara Virely. The allegations with respect to Virely relate directly to her conduct in her employment role and do not appear to impugn her for any personal behaviour. In these circumstances, I do not see a compelling reason to continue this Application against individual respondent Virely and as such, it is ordered dismissed against her and that the style of cause be amended accordingly.

7However, on review of the Application, there appears to be an allegation about the individual respondent Patricia Sullivan’s behaviour and remarks during a meeting. As such, it appears from the Application that the conduct of the individual respondent is an issue. In my view, it would be premature to remove the individual respondent at this point in time. Therefore, the respondents’ Request is dismissed with respect to respondent Sullivan.

Deferral

8The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.

9The respondents submitted that the substance of the Application would be the subject of an Identification Placement and Review Committee (“IPRC”) proceeding, which was to take place in spring 2010. The respondents submitted that the Application should be deferred pending the outcome of the IPRC review and any exercise of the applicant’s appeal rights.

10The applicant opposes the Request for deferral and submits that there are no on-going proceedings which relate to any of the facts in the Application.

11Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. However, deferral is not automatically invoked simply because the parties are involved in other legal proceedings. See Bhagdasserians v. 674460 Ontario, 2008 HRTO 404.

12I see no basis to defer the Application since the respondents have failed to identify any specific proceeding that is currently underway. Accordingly, the respondents’ Request to defer is dismissed.

13I am not seized of this matter.