Pochon v. Waterloo Regional District School Board, 2010 HRTO 1860

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sergio Pochon

Applicant

-and-

Waterloo Regional District School Board, Custodian and Maintenance Association (CAMA), Dave Lantz, Rod Reed, and Kenny Kuntz

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: September 10, 2010

Citation: 2010 HRTO 1860

Indexed as: Pochon v. Waterloo Regional District School Board

1The applicant in this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on May 6, 2009 alleges that the respondents discriminated against him on the basis of disability and ethnic origin in respect of employment and membership in a vocational association.

REQUEST TO REMOVE PERSONAL RESPONDENT

2On February 5, 2010, the respondents Waterloo Regional District School Board (“the School Board”) and Cindy Francis filed a Request for Order during Proceedings that Ms. Francis be removed as a party to the Application. They rely on Persaud v. Toronto District School Board, 2008 HRTO 31, in support of their Request and state that in her dealings with the applicant, Ms. Francis was at all times acting in the course of her job responsibilities as a Workplace Management Officer with the School Board.

3The applicant opposes this Request. He contends that Ms. Francis was the management officer with the School Board who was primarily responsible for the alleged violation of his human rights and ought not to be removed as a party to the Application.

4Section 36 of the Code identifies the proper parties to an Application to the Tribunal:

36. The parties to an application under section 34 or 35 are the following:

37. In the case of an application under subsection 34(1), the person who made the application.

38. In the case of an application under subsection 34(5), the person on behalf of whom the application is made.

39. In the case of an application under section 35, the Commission.

40. Any person against whom an order is sought in the application.

41. Any other person or the Commission, if they are added as a party by the Tribunal.

5The Application does not seek an order against Ms. Francis personally. Accordingly, based on the plain wording of section 36(4) of the Code, it appears that Ms. Francis is not a proper party to the Application.

6Further, in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 4, the Tribunal reiterated its concern about the “unnecessary naming of personal respondents” and offered a framework for considering whether to remove personal respondents:

…. the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

a. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b. 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?

c. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d. 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?

e. 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.

7In this case, there is no issue with respect to the deemed liability of the institutional respondent, the School Board, for the conduct of Ms. Francis, nor has the applicant raised any issue with respect to the School Board’s ability to respond to or remedy the alleged Code infringement. There is no compelling reason on the face of the Application for having the Application continue against Ms. Francis personally, nor has the applicant identified any prejudice that might result from removing Ms. Francis as a respondent to the proceeding. Accordingly, Ms. Francis is removed as a party to this proceeding. The style of cause is amended accordingly.

REQUEST FOR PRODUCTION OF DOCUMENTS

8The respondent, Custodian and Maintenance Association (“CAMA” or “the trade union”), and the remaining personal respondents, Dave Lantz, Rod Reed and Kenny Kuntz, filed a Request for Order during Proceedings on August 5, 2009 that the applicant produce the documents referred to in the Application and/or any documents involving the trade union and/or these personal respondents.

9Pursuant to Rule 16 of the Tribunal’s Rules of Procedure, the applicant was required to deliver a copy of all arguably relevant documents in his possession to the other parties to the proceeding within 21 days of the Confirmation of Hearing being sent by the Tribunal. The original Confirmation of Hearing in this matter was sent on February 1, 2010. Accordingly, the applicant was required to provide copies of his arguably relevant documents to the other parties by February 22, 2010. Even if the deadline for production were calculated from the date of the April 19, 2010 Confirmation of Hearing issued following the rescheduling of the hearing, the applicant ought to have produced copies of his arguably relevant documents to the other parties to the proceeding by no later than by May 10, 2010.

10I am satisfied that documents referred to by the applicant in his Application are arguably relevant to this proceeding and ought to be produced by the applicant. If he has not already done so, the applicant is directed to immediately produce to each other party to the proceeding a copy of his arguably relevant documents, including those documents referred to in his Application. In addition, the applicant is directed to provide to each other party to the proceeding a copy of any documents in his possession or control involving the trade union or the remaining personal respondents which relate to any of the issues in the Application or which relate to the period of time from December 2007 to May 2009.

REQUEST TO DISMISS THE APPLICATION FOR LACK OF JURISDICTION

11In their Request for an Order during Proceedings, the respondent trade union and the personal respondents also requested that the Tribunal dismiss the Application as against them. They submit that the Tribunal has no jurisdiction to deal with the Application as it relates to the alleged unfair representation of the applicant by the trade union and the named union representatives. They submit that such a complaint would be more appropriately dealt with pursuant to the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A., as amended (the “LRA”).

12Although the provisions of the Code in existence prior to July 1, 2008 empowered the Ontario Human Rights Commission to decide not to deal with a complaint where the complaint could or should be more appropriately dealt under a statute other than the Code, there is no such provision in the current Code. Although section 45.1 provided the Tribunal with the discretion to dismiss all or part of an application where another proceeding has appropriately dealt with the substance of the application, there is nothing in the Code which permits the Tribunal to refuse to hear an application on the basis that it could have been or could yet be pursued in a different legal forum. Accordingly, the Request to dismiss the Application for lack of jurisdiction is denied.

DEATH OF PERSONAL RESPONDENT

13In his recent correspondence to the Tribunal, counsel for the trade union and the union representatives advised that David Lantz, past president of the trade union and one of the named personal respondents in this matter, has recently passed away. Counsel submits that the Application should therefore be dismissed as against Mr. Lantz. He asks for the applicant’s consent to such an Order.

14Within 10 days of the date of this Interim Decision, the applicant is directed to write to the Tribunal, with a copy to each other party to the proceeding, indicating whether he consents to having Mr. Lantz removed as a personal respondent to the Application or whether he seeks to have his Application continue against Mr. Lantz.

15In the event that the applicant wishes to have the Application continue against Mr. Lantz, then also within 10 days of the date of this Interim Decision, he is directed to deliver to each other party to the proceeding and to file with the Tribunal written submissions explaining why Mr. Lantz is a proper party to the proceeding (in light of the provisions in the Code, the factors in Persaud, supra, and the fact that Mr. Lantz is now deceased) and indicating whether Mr. Lantz’s estate has been given notice of these proceedings. At the same time, the applicant is directed to provide any documentation which establishes that notice of these proceedings has been given to Mr. Lantz’s estate.

DOCUMENTS AND WILL-SAYS

16Pursuant to the Tribunal’s Rules, 45 days before the hearing, the parties to this matter were to have delivered to each other and filed with the Tribunal copies of any and all documents upon which they intend to rely as well as will-say statements for each of their witnesses, setting out the witnesses’ intended evidence.

17The respondents have filed such materials. The applicant has not and the deadline for doing so has passed. The Application indicates that the applicant intends to call witnesses and rely on documents at the hearing of this matter. The applicant is directed to deliver such materials to each of the other parties and to file them with the Tribunal immediately. Failure to comply with this and other directions in this Interim Decision may lead the Tribunal to dismiss the Application as abandoned. If the applicant intends to testify, he must also file a will-say statement setting out his own intended evidence.