HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margaret Way

Applicant

-and-

Governing Council of the University of Toronto and Coalition Against Psychiatric Assault

Respondents

INTERIM DECISION

Adjudicator: Ena Chadha

Date: November 24, 2010

Citation: 2010 HRTO 2337

Indexed as: Way v. University of Toronto

INTRODUCTION

1The applicant filed an Application on September 14, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination and reprisal with respect to services, goods and facilities on the basis of disability (perceived), creed, sex, age, and association with person identified with Code grounds.

2The Application names two organizational respondents: Ontario Institute for Studies in Education (“OISE”) and Coalition Against Psychiatric Assault (“CAPA”). The Application names one personal respondent, Don MacMillan, a Registrar with OISE (“MacMillan”).

3The applicant alleges that, in November 2009, she applied for admission into three OISE PhD programs. The applicant indicates that, around this time, she expressed concern regarding alleged discriminatory remarks made at a CAPA meeting. The applicant alleges that CAPA’s Chair, also a member of an OISE Admission’s Committee, negatively influenced OISE’s consideration of her admission. The applicant alleges that on March 27, 2010, she was notified by way of letters signed by Registrar MacMillan that she had been denied admission into the PhD programs. The applicant alleges that OISE, as influenced by the CAPA Chair, has unfairly denied her admission into the PhD programs because she is over sixty years of age, heterosexual, Christian and perceived to have a mental disability. The applicant also believes that she was denied admission because she had a previous Ontario Human Rights Commission (“Commission”) complaint involving some of the same parties.

4CAPA filed its Response on September 20, 2010. CAPA submits that it has no relationship with the OISE, no role in OISE’s admissions procedures and no authority with respect the admissions considerations. CAPA further alleges that the applicant has failed to allege any specific facts against it.

5Counsel on behalf of OISE and MacMillan (“the respondents”) has advised that the proper legal name for the organizational respondent is the Governing Council of the University of Toronto (“University”). Consequently, the style of cause is amended to reflect the same.

6The respondents filed a Response on October 1, 2010, wherein they requested the Tribunal dismiss the Application. The respondents indicate that in 2005, the applicant was denied admission into the OISE’s PhD program and this situation had been the subject of, and settlement of, a previous Commission complaint. The respondents request the Tribunal dismiss the current Application on the basis of the previous Commission complaint and the existence of a full and final release arising out of the settlement of that complaint. The respondents also ask the Tribunal to strike all allegations that pre-date November 2009 and further ask the Tribunal to remove the personal respondent as a party to this Application.

7On October 5, 2010, the Tribunal forwarded copies of the respondents’ Response to the applicant and indicated that these respondents were seeking dismissal of the Application on the basis that (i) pursuant to section 53(8) of the Code the subject-matter of the Application is the same or substantially the same as a previously filed Commission complaint and (ii) the applicant signed a full and final release with respect to the same issues in dispute in the Application. The Tribunal directed the applicant to provide written submissions in response to the respondents’ request on or before October 19, 2010.

8The applicant filed submissions on November 9, 2010, along with various documents. The applicant’s submissions addressed the respondents’ request to dismiss and request to remove the personal respondent.

BACKGROUND

9The applicant’s previous human rights complaint was filed in 2005 and alleged that she experienced discrimination on the basis of age and disability in being refused admission OISE’s PhD program. The 2005 complaint was settled in August 2008. The settlement did not include a confidentiality clause. The settlement included a provision expressly contemplating that the applicant could re-apply for admission in 2009 and that her application would be considered in “normal course”.

SECTION 53(8) REQUEST AND RELEASE

10Section 53(8) of the Code states that no application may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV of the Code. As such, under section 53(8) of the Code, the Tribunal lacks jurisdiction to accept a section 34 application in circumstances where the allegations contained in the application constituted the subject-matter or substantially the same subject-matter of a complaint previously filed with the Commission under the old Part IV of the Code.

11After reviewing the parties’ materials and the accompanying documentary information, I find that section 53(8) is not directly applicable to the circumstances of the current Application. While it appears that the current Application and the previous human rights complaint are both related to the applicant’s efforts to enrol in the University’s PhD program, it is clear that the current Application addresses the applicant’s recent concerns regarding admission into three PhD programs for the 2009/2010 academic year. It appears that the applicant also has concerns regarding issues of reprisal arising from the lack of confidentiality of the settlement, as well as allegations in regards to her creed and sexual orientation.

12In my view, all the statements in the applicant’s current Application that relate to her previous Commission complaint can only serve as background information for her current allegations.

13I further find that, while a 2008 release exists in regards to the 2005 human rights complaint, that 2008 release does not bar the current Application. The 2008 release expressly provided that the applicant could re-apply to OISE for admission into the 2009/2010 academic year and that her application would be considered in “normal course”. In my view, the previous settlement cannot reasonably be interpreted as constituting a full and final release of the applicant’s claims against the respondents for events arising out of the recent application for admission.

REQUEST TO STRIKE EVENTS PRE-NOVEMBER 2009

14The respondents submit that all the allegations in the Application that relate to incidents that occurred prior to November 2009 should be dismissed because they are outside the one-year statutory deadline and do not form part of the events relating to the applicant’s recent application for admission in the 2009/2010 academic year. Specifically, the respondents point to the applicant’s allegations regarding an incident involving a classroom presentation in October 2008 as being out of time.

15Section 34 of the Code provides:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under subsection 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

16The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, it has no power to relieve against the one-year time limit and to determine the Application.

17Based on my careful review of the Application, it is apparent that the October 2008 incident was a single classroom event unrelated to the applicant’s application into the three PhD programs in 2009. The applicant does not allege that the October 2008 incident is in any way part of a series of incidents related to the events she alleges occurred surrounding her November 2009 application for admission.

18Further, in her submissions, the applicant indicates that she sought legal advice regarding the October 2008 incident; however, based on that advice decided to wait to collect more evidence before pursuing human rights recourse regarding the October 2008 incident.

19The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

20Based on the information before the Tribunal, the applicant has not demonstrated why she could not meet the required one year timeline with respect to the October 2008 incident. While the applicant may well have been guided by legal advice to hold off from filing an application, she has not established that she could not have pursued her rights within the timeline mandated by the Code. Accordingly, all allegations regarding events prior to November 2009 will not be considered to form part of the current Application as these events are beyond the one year timeline of section 34(1).

21I find that the events that form part of the current Application are the applicant’s allegations of discrimination and/or reprisal that arise from and occurred following the November 2009 applications for admission into three PhD programs.

REQUEST TO REMOVE PERSONAL RESPONDENT

22The respondents request that the Tribunal remove Don MacMillan as a personal respondent from the Application. The respondents submit that there are no direct or indirect allegations against MacMillan.

23In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

24The 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 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?

25The University submits that at all material times MacMillan was acting in his capacity as a Registrar of the organizational respondent and, as such, it is inappropriate to continue the Application as against him as a personal respondent.

26In my view, considering all the circumstances, it is not necessary to involve Don MacMillan as a personal respondent in order to have a fair, just and expeditious resolution of the merits of the Application. I accept the respondents’ submissions that the Application in no way references or impugns MacMillan’s personal conduct. The Application clearly describes MacMillan as simply the signatory to the admissions refusal letters received by the applicant when the University denied her applications. As such, there does not appear to be any compelling reason to continue the Application as against the personal respondent given that, at all times, he was acting within the scope of his employment responsibilities.

27The respondents’ request to remove Don MacMillan as personal respondent to the Application is therefore granted. The style of cause is amended accordingly.

28The Application will continue to be processed and the Tribunal may issue further case management directions as necessary. I am not seized of this matter.