HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ronald Sorochan Applicant
-and-
District School Board Ontario North East, Ken Ryan, Jo-Anne Plaunt, Linda Knight, Linda Henry and Lynn Olmstead Respondents
INTERIM DECISION
Adjudicator: Naomi Overend Date: November 24, 2010 Citation: 2010 HRTO 2335 Indexed as: Sorochan v. District School Board Ontario North East
1The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”) alleging discrimination in employment on the basis of disability and record of offences. His Application named both an organizational respondent and 16 individual respondents.
2On October 1, 2010, the Tribunal sent the applicant a Notice of Intent to Dismiss against Certain Respondents, in which it notes that the applicant failed to identify any specific acts of discrimination in his Application against the individual respondents. The Notice also indicated that the applicant selected the ground of record of offences in his Application, but failed to describe how that ground applied to his situation.
3This Interim Decision addressees both the unnecessary naming of individual respondents as well as the appropriateness of including record of offences as a ground. In addition, it requests submissions from the parties concerning the impact of the applicant’s grievance on these proceedings.
Removing Individual Respondent
4In 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.
5The applicant explained in his submissions concerning the naming of 11 of the 16 individual respondents that they were the Board of Trustees of the District School Board of Ontario North East (“School Board”) and, therefore, “ultimately accountable for all behaviour, decisions and actions taken by management… in their jurisdiction.”
6This is an insufficient basis for naming these individuals. Not only would the School Board be accountable for their actions, but the applicant is not even suggesting that the conduct of any of these individuals is even in question. The applicant has not identified any prejudice to him that would occur if these individuals were removed as respondents to his Application.
7Accordingly, I order the following individuals removed as parties to this proceeding: Saunders Porter, Rosemary Pochopsky, Howard Archibald, Heather Bozzer, Bill Brookfield, Dennis Draves, Tom Henderson, Richard Knowles, Juergen Leukart, Peter Osterberg and Albert Schaeffer.
8Based on the applicant’s submissions, it is not plain and obvious that the remaining five individuals should be removed as parties to this proceeding at this preliminary stage, before it is served on the respondents. A decision to continue to deal with an Application is not a final decision regarding the appropriateness of continuing against the respondents named in the Application.
9A copy of the Application, this Interim Decision and the submissions filed by the applicant in response to the NOID will be sent to the remaining respondents. The respondents are directed to file a full Response to the Application, which could include submissions on the issue of the appropriateness of continuing against them.
Removing Record of Offences as a Ground
10The term “record of offences” is defined in section 10(1) of the Code as follows:
“record of offences” means a conviction for,
an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked; or
an offence in respect of any provincial enactment.
11It would appear from the applicant’s material that he has been convicted of an offence. He acknowledges that he has not been pardoned, but notes that his conviction is “pardonable in the future.” The definition makes it clear that this ground can only be invoked where the pardon has been granted. Accordingly, the Tribunal has no jurisdiction over any allegations in relation to the applicant’s criminal conviction and that ground is removed from his Application.
Deferral or Section 45.1
12In his Application, the applicant states that the subject matter of the Application is being dealt with in a grievance, which was scheduled to go to arbitration in July 2010. He asked that his Application not be deferred pending the outcome of the grievance.
13Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Under Rule 14 of the Tribunal’s Rules of Procedure, the Tribunal may, on its own initiative or on the request of a party, defer consideration of an application after providing notice of its intention to do so to all parties and giving them an opportunity to make submissions.
14It is not clear whether the grievance proceeding has, in fact, concluded. If that is the case, the parties may wish to make submissions on the issue of whether section 45.1 of the Code applies. Section 45.1 states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
15The respondents may wish to address the issue of deferral or dismissal under s. 45.1 in their Response(s) to the Application. Regardless of whether the respondents chose to do so, the applicant is directed to make submissions on these issues within 14 days of receipt of the Response(s).
16I am not seized.
Dated at Toronto, this 24th day of November, 2010.
”signed by”______
Naomi Overend Vice-chair