Mohamud Osman v. Toronto District School Board, 2010 HRTO 2387

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohamud Osman

Applicant

-and-

Toronto District School Board

Respondents

INTERIM DECISION

Adjudicator: Mark Hart

Date: December 1, 2010

Citation: 2010 HRTO 2387

Indexed as : Osman v. Toronto District School Board

WRITTEN SUBMISSIONS BY

Mohamud Osman, Applicant ) Self-represented

Toronto District School Board, ) Glorie Alfred, Counsel

Donna Jondreau, Sheila Penny and )

Gabriella Sicheri, Respondents )

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 30, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on July 16, 2007.

2The applicant, on behalf of the College of Toronto, alleges that he experienced discrimination because of colour, ethnic origin, place of origin and race in relation to the occupancy of accommodation contrary to ss. 2(1) and 9 of the Code, as result of the respondent Board’s failure to renew a lease agreement with the College of Toronto.

3The purpose of this Interim Decision is to address the respondents’ request for removal of the personal respondents.

4The principles relating to the removal of personal respondents are stated in Persaud v. Toronto District School Board, 2008 HRTO 31 as follows:

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?

5In this case, the respondent Board also is alleged to be liable for the conduct at issue in this proceeding, and the respondent Board has accepted its deemed or vicarious liability for any conduct by the personal respondents as they were acting in the course of their responsibilities as employees of the Board.

6There also, in my view, is no real issue as to the respondent Board’s ability to respond to or remedy the alleged Code infringement. I am aware that in his statement of requested remedies, the applicant is seeking a written apology from both the respondent Board and the individual respondents. However, as I stated in Ogunyankin v. Queen’s University, 2010 HRTO 2035 at para. 7,

(…) the mere fact that an applicant has requested an apology from a personal respondent is not, in and of itself, a sufficient basis to justify continuing the proceeding against that individual as a party without consideration of all of the factors outlined in the Persaud decision.

7As with most cases involving a request for removal of personal respondents, the question comes down to whether there is any compelling reason to continue the proceeding as against any personal respondent. This depends, of course, upon a review of what specific allegations are made in the Application as against each personal respondent and whether the nature of those allegations provide a compelling reason to continue the proceeding as against that individual personally. As a result, I will review the allegations made as against each of the personal respondents at issue.

8With regard to Gabriella Sicheri, she appears to have been named as a personal respondent because she is the signatory on a letter dated June 16, 2006. This letter advised the applicant that the current one year lease was expiring on August 31, 2006 and he had not exercised the option to renew, and informed the applicant that the respondent Board was not prepared to lease the premises to him beyond August 31, 2006. The lease was subsequently renewed for one year on the basis of correspondence dated August 31, 2006 from counsel for the respondent Board. No other allegation is made against Ms. Sicheri. In my view, the nature of Ms. Sicheri’s involvement does not provide any compelling reason to continue the proceeding against her as a personal respondent.

9With regard to Sheila Penny, she appears to have been named as a personal respondent because she is the signatory to a letter dated June 6, 2007 in which she declines the applicant’s offer to enter into a new lease agreement with the respondent Board. It is clear that Ms. Penny wrote this letter in her capacity as Executive Superintendent with the respondent Board. No other allegation is made against Ms. Penny. Once again, in my view, the nature of Ms. Penny’s involvement does not provide any compelling reason to continue the proceeding against her as a personal respondent.

10With regard to Donna Jondreau, she was a Coordinator in the respondent Board’s Real Estate Services department at the material time. There are two specific allegations in the complaint which expressly reference Ms. Jondreau. First, it is alleged that the applicant received an e-mail from Ms. Jondreau on May 23, 2007 denying a renewal of the lease. Second, the complaint references an e-mail from Ms. Jondreau dated July 4, 2007, following the expiry of the lease, in which she makes reference to the applicant’s failure to remove a rental sign from “our lands”. The applicant takes the position that the use of the term “our lands” is discriminatory. No other specific allegation is made against Ms. Jondreau in the complaint.

11In my view, neither of these allegations provides any compelling reason to continue this proceeding as against Ms. Jondreau personally. With regard to the first allegation, Ms. Jondreau was communicating the non-renewal of the lease from her position and on behalf of the Board. If there was any discriminatory reason for the non-renewal, then this clearly would be the Board’s responsibility. With regard to the second allegation, while the use of the words “our lands” is attributable to Ms. Jondreau as the author of the e-mail, I do not see how the applicant is prejudiced if the Board has agreed to assume responsibility for her actions as its employee. This is one small aspect of the primary allegations raised in the Application and does not serve to make Ms. Jondreau’s actions a “central issue” in the proceeding within the meaning of what I stated in the Persaud decision. Accordingly, I do not find that there is any compelling reason to continue the proceeding as against Ms. Jondreau as a personal respondent.

12The applicant has not asserted that he would be prejudiced by the removal of the personal respondents, nor do I see any basis upon which prejudice could be found. While it is true that, if the personal respondents are removed, the applicant would not be able to obtain a written apology from them as a remedy, I do not find that this factor outweighs the other factors set out in the Persaud decision, which all point towards removing these individuals as personal respondents.

13For all of these reasons, I hereby order that the personal respondents be removed as parties to this proceeding, and the title of proceeding has been amended accordingly.