HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Edelgard Mahant
Applicant
-and-
York University
Respondent
-and-
York University Faculty Association
Intervenor
interim DECISION
Adjudicator: Naomi Overend
Date: October 5, 2010
Citation: 2010 HRTO 2023
Indexed as: Mahant v. York University
written submissionS
Edelgard Mahant, Applicant ) Self-represented )
York University and David Dewitt., ) Richard Charney, Counsel Respondents )
1This is an Application filed on June 24, 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The original complaint was filed with the Ontario Human Rights Commission (“Commission”) on February 21, 2007 and abandoned upon filing this Application with the Tribunal.
2This Interim Decision addresses the respondents’ request for removal of the personal respondent, Dr. David Dewitt, as a party to this proceeding. The applicant opposes this request, while the intervenor, the York University Faculty Association, takes no position.
3The Application alleges discrimination because of age and reprisal in employment arising out of the decision to not short-list her for a position of co-director of the Canadian Centre for German and European Studies. She was informed of this decision in January 2007. The applicant states that she had been publicly critical of York University’s decision to force her and other professors to retire even though legislation against mandatory retirement was coming into effect shortly thereafter. An article about this issue, in which she was featured, appeared in the Toronto Star on August 17, 2006.
4The parties agree that the principles relating to the removal of personal respondents have been set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”). In this case, York University is also alleged to be responsible for the conduct at issue and has specifically conceded liability for Dr. Dewitt’s conduct (which it says was all within the scope of his duties). There is no issue concerning York University’s ability to respond to or remedy any alleged Code infringement.
5The question comes down to the issue of whether there is a compelling reason to continue the proceeding as against the personal respondent. If Dr. Dewitt’s individual conduct is a central issue in the Application, then that would be a compelling reason. However, the only specific allegation against him in the complaint form as filed with the Commission is his hasty denial of discrimination in a phone call between the two without asking the applicant on what grounds she was alleging discrimination.
6In addition, in a Fact-Finding Meeting subsequent to the filing of the complaint with the Commission, the applicant states Dr. Dewitt made a comment with respect to what the search committee was looking for, from which the applicant infers age discrimination. However, this comment serves to highlight that the conduct was the conduct of the committee, not Dr. Dewitt’s individual conduct.
7The applicant also states that some of the comments attributed to Dr. Dewitt “may make it appropriate to award a remedy specifically against him.” However, in her List of Remedies Sought subsequently submitted with the Tribunal, the applicant does not request a specific remedy against Dr. Dewitt.
8In answer to the question posed in Persaud at paragraph 5, the applicant has failed to put forward a compelling reason why it is necessary to involve Dr. Dewitt “as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.” Removing Dr. Dewitt will not affect the applicant’s right to a full hearing on the merits or the substance of the remedies sought.
9For all of these reasons, the Request is granted and the personal respondent, Dr. David Dewitt, is removed as a party to this proceeding. The title of proceeding will be amended accordingly.
10I am not seized of this matter.
Dated at Toronto, this 5^th^ day of October, 2010.
”signed by”______________
Naomi Overend
Vice-chair