Emmanuel Agbalugo v. York University, 2010 HRTO 1905

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Emmanuel Agbalugo

Applicant

-and-

York University

Respondent

interim Decision

Adjudicator: Dale Hewat

Date: September 20, 2010

Indexed as: Agbalugo v. York University

1This Interim Decision addresses a Request for Order During Proceedings (the “Request”) filed by the respondents on August 9, 2010. The applicant has not responded to the Request. The hearing of this matter is scheduled to continue on September 29 and 30, 2010. This Interim Decision answers each of the respondents’ requests made on August 9, 2010 and provides direction for how the hearing will proceed on September 29, 2010.

2In the Request the respondent, York University, asks for the following orders:

a. That the applicant not be permitted to introduce any further documents or evidence including a tape-recording that he disclosed on June 10, 2010.

b. Alternatively, that the applicant provide particulars of the tape recording and a complete copy of the recording to the respondents by such date as the Tribunal deems appropriate and just in the circumstances.

c. That Alice Pitt and Alison Gaymes be removed from the Application as personal respondents and that the Tribunal confirm that Yonnette Day is not a personal respondent in this Application. In addition, the respondent York University argues that the allegations raised against each of these individuals do not establish a prima facie case of a breach of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

d. Releasing the respondent York University from the obligation to call Michael Charles as a witness on the basis that there is no prima facie case of a breach of the Code. Alternatively, the respondent York University seeks an order allowing Mr. Charles to testify by conference call.

Documents and Evidence

3This hearing of the Application was originally scheduled on May 20, 2010. Prior to the hearing the Tribunal issued two Interim Decisions dated April 9 and 20, 2010 that denied the applicant’s request to expand the Application but allowed an extension of time for the applicant to file materials pursuant to Rule 18 of the Tribunal’s Rules and Procedures. See 2010 HRTO 785 and 2010 HRTO 983.

4When the hearing took place on May 20, 2010, the applicant still had not filed his arguably relevant documents. The applicant sought an adjournment of the case at the hearing due to his medical and his personal circumstances

5I granted the applicant an adjournment on May 20, 2010 and made an oral ruling extending the applicant’s time for filing until June 10, 2010. When the applicant delivered his documents to the respondents on June 10, 2010, he advised that he could not afford to copy all of his documents and therefore, he might be seeking permission to deliver more documents at a later date. The applicant also indicated that he had a tape recording that he wanted to rely upon and that he intended to leave the tape recording with the Tribunal because he also could not afford to have it copied.

6The respondents submit that on May 12, 2010, prior to the original scheduled hearing of this matter, the applicant advised that he would be relying upon the documents filed by the respondents and on all of the documents that he submitted to the Human Rights Commission. The applicant has never mentioned the existence of a tape recording and his reliance upon it either in the original complaint or in this Application.

7The respondent submits that to allow the applicant to rely on any material beyond that which has been properly delivered and filed by June 10, 2010 would cause a denial of procedural fairness. In addition, the respondent argues that the tape recording should not be because considered because it was never advised of its existence and they question the validity and relevance of the alleged recording.

8I agree with the respondent’s requests with respect to the production of additional documents and the alleged tape recording. The applicant has been afforded ample time to produce documents and arguably relevant evidence and has received two extensions of time for filing such materials. At the hearing on May 20, 2010 the applicant stated that he needed time to copy and produce and organize his materials, which included only the documents that he originally provided to the Human Rights Commission in his original complaint. The applicant never mentioned the existence of a tape recording in his original complaint nor has he previously identified the relevance of it to his claim. Given the applicant’s failure to explain how the tape recording is arguably relevant to his case and why he has never raised it prior to June 11, 2010 I have determined that he may not rely upon it at the hearing. Accordingly, the applicant will only be allowed to rely upon documents and materials that he produced and properly delivered to the respondents and the Tribunal prior to the May 20, 2010 hearing and up to and including June 10, 2010.

Witness Testimony – Michael Charles

9One of the respondent’s witnesses, Michael Charles, resides in Costa Rica and would be available to testify on either September 28 or 29, 2010 through a conference call. In this case, given the cost and time involved for Mr. Charles to travel to Toronto to attend as a witness, it is reasonable to allow him to testify by telephone during the hearing. Mr. Charles will be required to make himself available to be contacted by conference call either on the afternoon of September 29, 2010 and the morning of September 30, 2010. After the applicant’s testimony is completed, I will confirm the precise time that Mr. Charles will be contacted.

Removal of Personal Respondents

10I find that there are grounds to remove the personal respondents, Yonette Dey, Alison Gaymes and Alice Pitt as parties to this proceeding. Pursuant to Rule 14(b) of the Tribunal’s Rules of PracticePursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal considered a number of factors that are helpful in assessing whether a personal respondent should be removed:

a. Is there 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 is sought to be removed?

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

d. Does any compelling reason exist to continue 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 or 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?

11It should be noted that in the original complaint both Yonette Dey and Alison Gaymes were named as individual respondents but were not named as personal respondents when the applicant filed the instant Application. However, the Tribunal’s records show them as personal respondents and I have considered them as continuing as personal respondents in this Application.

12Based on my review of the Application, it is clear that the first three factors listed above favour the removal of the personal respondents. Each of the three named personal respondents was acting in within the scope of her duties at York University in her dealings with the applicant. Dr. Pitt was the Associate Dean of the Faculty of Education at the material time of this complaint and, in that capacity, responded to the applicant’s circumstances. Ms. Dey was the applicant’s Course Director under secondment by York University at the public school where the applicant was placed for a teaching practicum. Ms. Gaymes was also a Course Director at the material time during the applicant’s teaching practicum and was responsible for assessing the applicant. The respondent York University is the corporate entity that is liable for any conduct of its employees that may be found to be in violation of the Code or to have contributed to a Code infringement. I further find that no significant prejudice would result to the applicant if the personal respondents are removed. As a result, I order that Ms. Dey, Dr. Pitt and Ms. Gaymes be removed as parties to this proceeding and the

style of cause is amended accordingly. Given this decision it is not necessary for me to consider the respondent’s request to dismiss the application as against these individuals for failure to set out a prima facie case.