A.A. v. Robert Land Academy, 2010 HRTO 486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.A. by his next friend S.A.

Applicant

-and-

The Robert Land Academy

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: March 8, 2010

Citation: 2010 HRTO 486

Indexed as: A.A. v. Robert Land Academy

1This is an Interim Decision in respect of an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The applicant alleges that he was discriminated against with respect to the provision of goods, services and facilities on the grounds of race, colour, ancestry, ethnic origin and creed. The allegations relate to experiences the applicant had while attending Robert Land Academy (“RLA”). He alleges that he was treated differently and disciplined more harshly than other students who are not of his race, background, and religion.

2The Application names Scott Bowman and Sandra Bowman as respondents. The applicant has since filed a Request for an Order During Proceedings (“RFOP”) seeking to add the RLA as a respondent.

3The respondents do not oppose the applicant’s request to add the RLA as a respondent. However, in the event the RLA is added as a respondent, the personal respondents submit that they should be removed as parties to this proceeding. Submissions were filed on behalf of the personal respondents and the RLA jointly. In these submissions, counsel states:

RLA raises no issue as to its deemed or vicarious liability for the conduct of Headmaster Bowman or Mrs. Bowman. There is no issue as to its ability to respond or remedy the alleged Code infringements.

4Counsel submits that the real issue in the case is the alleged liability of the RLA and that, in any event, the personal respondents were acting within the scope of their employment duties.

5In their RFOP, the respondents also seek an order that the applicant represent himself because he has now reached the age of majority. The applicant objects to this request and states that, given the applicant’s learning disability and his attention deficit hyperactivity disorder, it continues to be appropriate to have a next friend in these proceedings.

REQUEST TO ADD THE RLA AS A RESPONDENT

6In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following three factors to be considered in determining a request to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

7In the circumstances of this case, having regard to the factors set out above and given that neither the RLA nor the personal respondents object to the applicant’s request, the request to add the RLA as a respondent is granted. The style of cause will be amended accordingly.

REQUEST TO REMOVE THE INDIVIDUAL RESPONDENTS

8The Tribunal set out the general approach to this issue Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. The Tribunal wrote:

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.

9In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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?

10In my view there is no reason why Scott and Sandra Bowman should be personal respondents in this matter. While, as the applicant points out, some of the allegations relate to the actions of these individuals, there is no dispute that all of their actions fall within the normal course of their employment. Further, the RLA has stated that it will accept liability for any of their actions. There is no apparent prejudice to the applicant if the two personal respondents are removed and, indeed, the applicant has provided no basis why they should not be removed as personal respondents.

11As a result, I order that Scott and Sandra Bowman be removed as respondents in this matter and the style of cause is amended accordingly.

REPRESENTATION OF THE APPLICANT

12Section 34(5) of the Code contemplates actions brought on behalf of another. It states:

A person or organization, other than the Commission, may apply on behalf of another person to the Tribunal for an order under section 45.2 if the other person,

(a) would have been entitled to bring an application under subsection (1); and

(b) consents to the application.

13That the conditions of section 34(5) were met at the time of filing is not at issue. Rather, the issue raised by the respondents is whether, in the present instance, the next of friend can continue the proceeding on behalf of the applicant given that he seems to have reached the age of majority.

14The applicant neither confirms nor disputes that he has reached the age of majority. The applicant has, however, filed a psychologist’s report, which indicates that he has a learning disability and attention deficit hyperactivity disorder. The applicant’s next friend submits that, because of these disabilities, it is appropriate for her to continue the proceeding on the applicant’s behalf.

15In other legal proceedings, rules of procedure require that a person be under a legal disability in order for a litigation guardian or next friend to be named and specifically set out a power to remove a litigation guardian, either because the litigant is no longer under a legal disability or because of concerns with the behaviour or interests of the litigation guardian. See, for example, Gronnerud (Litigation Guardians of) v. Gronnerud Estate, 2002 SCC 38, [2002] 2 S.C.R. 417 and Re: Wong Estate, 2007 BCSC 1189.

16This requirement of a legal disability is not specifically contemplated in section 34(5) of the Code, nor is it addressed in the Tribunal’s Rules. Rather, section 34(5) sets out only two requirements for an application to be brought on behalf of another person: that the applicant have a right to file an Application pursuant to section 34(1) and that the applicant consent to the application.

17As Form 4 suggests, there appear to be three circumstances where an application can pursue a matter on another’s behalf: 1) where the applicant is a minor, an application may be filed on his or her behalf pursuant to section 34(1); 2) in the case of a litigation guardian or substitute decision-maker acting in that capacity, an application may be filed on the applicant’s behalf under section 34(1); and where the conditions of section 34(5) are otherwise met, an application may be filed on the applicant’s behalf under section 34(5).

18It appears that the applicant is no longer a minor. There is no evidence before the Tribunal that the applicant’s next friend is acting in the capacity of litigation guardian or substitute decision-maker.

19Therefore, within 14 days of the date of this Interim Decision, should the applicant wish the next friend to continue the proceedings on his behalf, he is required to file with the Tribunal and provide to the respondent a copy of Form 4 indicating his consent to the next of friend continuing the Application on his behalf. Upon the filing of a Form 4, the Application will be treated as though it had been filed under s. 34(5).

20I am not seized of this matter.