Narine Loojune v. Toronto Transit Commission and Mark Gray, 2010 HRTO 237

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Narine Loojune

Applicant

-and-

Toronto Transit Commission and Mark Gray

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: February 2, 2010

Citation: 2010 HRTO 237

Indexed as: Loojune v. Toronto Transit Commission

WRITTEN SUBMISSIONS BY

Narine Loojune, Applicant ) Self-represented

Toronto Transit Commission, Respondent ) Cynthia Kontra, Counsel

1This Application was filed June 17, 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 hearing is scheduled for April 19, 2010. This Interim Decision deals with a Request for Order during Proceedings seeking the addition of Mark Gray as a respondent to the Application.

Background

2The applicant self-identifies as East Indian. He filed a complaint against the Toronto Transit Commission (the “TTC”) on December 23, 2005 relating to an incident on a TTC bus in June 2005. He listed “John Doe”, the bus driver as a person he was complaining about. The allegation is that the bus driver who is “White” refused to accept his valid transfer and must have done so because of his race and colour.

3Following an Interim Decision 2009 HRTO 1294 dated August 21, 2009 and the disclosure of the bus driver’s name, the applicant filed the present request seeking to add the bus driver, Mark Gray as a respondent.

4The Tribunal has held that it may exercise its discretion to add a party when the alleged facts, if proven, could lead to a finding that the proposed respondent infringed the applicant’s rights under the Code; when the proposed respondent would not suffer real and substantial prejudice if added as a party to the proceeding, and when it would be fair, in all the circumstances to add the proposed respondents: Smyth v Toronto Police Services Board, 2009 HRTO 1513.

5In this case, if the bus driver treated the applicant differently because of his race, colour or ethnic origin, that could lead to a finding that the personal respondent breached the applicant’s rights under the Code. It could give rise to a remedy against the personal respondent, such as a requirement to undergo human rights training or payment of a damage award.

6The respondents asked the Tribunal to consider the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras 4-5 in deciding whether to remove personal respondents 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 [is] 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?

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.

7I agree that those factors are equally applicable in determinations whether to add a party.

8However, in this case, the allegation is that the bus driver either deliberately or subconsciously treated the applicant differently because of his race and colour. This is the kind of compelling circumstance that distinguishes this case from those cases where employees are acting in the course of their employment and it is appropriate to order remedies solely against the employer.

9I am satisfied that there is no prejudice to Mr. Gray, as the TTC has gathered and kept all the relevant documents and evidence relating to the incident.

10I find that this is an appropriate case to exercise my discretion to add Mark Gray as a respondent to these proceedings.