HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Randy King
Applicant
-and-
Toronto Public Library Board
Respondent
INTERIM DECISION
Adjudicator: Ena Chadha
Indexed as: King v. Toronto Public Library Board
1The Application was filed on March 25, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination with respect to services, goods and facilities on the basis of disability (perceived).
2The respondents filed a Response on June 22, 2010 and request that: 1) the Tribunal dismiss the Application for delay pursuant to section 34(1) of the Code and 2) remove the individual respondent. The respondents submit that the Application was filed beyond the one year timeframe set out in the Code because the alleged incident took place on January 10, 2009. The respondents submit that the individual respondent should be removed from the Application because he was performing his duties as an employee of the organizational respondent.
3The applicant filed a Reply on September 1, 2010. The applicant submits that the discrimination is on-going and therefore the Application is not time barred. The applicant objects to the removal of the individual respondent. The applicant submits that he is complaining about the conduct of the individual respondent and therefore the individual respondent should be responsible for his own behaviour.
BACKGROUND
4The Application alleges that, on January 10, 2009, the applicant was refused assistance by an employee of the respondent library. The applicant raised his concerns with the individual respondent, the branch head, who indicated that the employee was not required to assist the applicant if she was uncomfortable doing so. The applicant alleges that during this verbal exchange the individual respondent allegedly made discriminatory remarks about the applicant, suggesting that the applicant had a serious psychiatric disability, and asking the applicant to leave the library because of this perceived disability. The applicant reported the incident to the respondent library board and asserts that the respondent library board failed to appropriately address his concerns. The applicant further alleges that various library staff and, in particular, the individual respondent, continue to shun him and treat him with suspicion. The Application narrative indicates that “the most recent case” of the individual respondent’s refusal to provide the applicant with service was on the evening of January 27, 2010, when the individual respondent provided assistance to other patrons but allegedly deliberately avoided the applicant.
REQUEST TO DISMISS FOR DELAY
5Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:
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 section 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.
6On review of the material before me, I am satisfied that this Application may proceed. While the original incident described in the Application occurred approximately thirteen months prior to the filing of Application, it is apparent that the applicant clearly feels that the alleged discriminatory treatment is on-going and allegedly will not abate. Further, the applicant’s concerns, as set out in the Application, also relate to the organizational respondent’s handling of the original incident. The documentary materials indicate that the applicant and the organizational respondent exchanged correspondence in the spring of 2009, which precipitated the applicant’s allegations regarding the organizational respondent. Lastly, the Application narrative makes allegations regarding the individual respondent’s treatment toward the applicant on January 27, 2010.
7As in the case of Capocci v. York Catholic District School Board, 2009 HRTO 107, I find that the applicant alleges that the respondents subjected him to a series of discriminatory acts which continued until shortly prior to the filing of the Application. On this basis, I conclude that the Application was filed within one year after the last alleged incident of discrimination.
REQUEST TO REMOVE INDIVIDUAL RESPONDENT
8Rule 1.7(b) of the Tribunal’s Rules of Procedure affirms the Tribunal’s power to “add or remove a party”. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal outlined the following list of “non-exhaustive” factors in considering whether an individual respondent should be removed:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
9The respondents submit that the Tribunal should remove the individual respondent as party to this matter because any allegations made against the individual respondent relate to when he was acting within his employment capacity for the organizational respondent and there is no issue with respect to the organizational respondent’s deemed or vicarious liability in that regard. The respondents further argue that there is no assertion that any individual respondent’s personal conduct, independent from the organizational respondent, is in dispute. The respondents submit that there is no compelling reason to continue the proceeding against the individual respondent and that no prejudice would be caused to the applicant’s ability to have a full hearing of his concerns.
10Based on a review of the Application, Response and Reply, I am satisfied that the individual respondent should be removed from this proceeding. There is no suggestion that the individual respondent was acting outside the course of his employment. The organizational respondent has assumed responsibility for the individual respondent’s conduct. I see no prejudice to the applicant’s ability to proceed with the hearing of this matter and receive an adequate remedy if an infringement of the Code is established.
11I therefore order that individual respondent be removed as a party from this Application and the style of cause be amended accordingly. As the applicant and the organizational respondent have agreed to mediation, the Registrar’s Office will schedule a mediation date for this matter.
12I am not seized.
Dated at Toronto this 3rd day of December, 2010.
“Signed by”
Ena Chadha
Vice-chair```