Pakarian v. University of Toronto, 2010 HRTO 815

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pooya Pakarian

Applicant

-and-

University of Toronto, University Health Network, Robert Chen, Michael Angel, and Aimee Nelson

Respondents

INTERIM DECISION

Adjudicator: Faisal Bhabha Date: April 13, 2010 Citation: 2010 HRTO 815 Indexed as: Pakarian v. University of Toronto

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated October 16, 2009, alleging discrimination, which is denied by the respondents.

2In an Interim Decision, reported as Pakarian v. Chen, 2010 HRTO 457, the Tribunal issued a number of preliminary rulings, denying the respondents’ request for early dismissal on the basis of delay, directing the applicant to request to amend his Application by adding two organizational respondents, denying the applicant’s request for an expedited hearing, and directing that the matter be scheduled for two initial days of hearing.

3On March 11, 2010, the applicant filed a Request for Order During Proceedings (Form 10) requesting to amend the Application to include the University of Toronto and the University Health Network as organizational respondents. The applicant also raised numerous objections to the manner in which the background facts were summarized in the Interim Decision. He asks that the Interim Decision be removed from the database immediately and that the content of the Interim Decision be “corrected”. He also complains about the conduct of respondents’ counsel, though it is not clear what he seeks in that regard.

4On March 24, 2010, the respondents filed a Response to the applicant’s Request (Form 11). They ask the Tribunal to strike the applicant’s Form 10 in its entirety on the basis that it is “deficient and/or improper”. In support of this position, counsel points to a number of alleged procedural failings on the part of the applicant. Counsel also draws attention to portions of the applicant’s submissions which allegedly overstep what is permitted to be disclosed under section 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c.18, as amended (“RHPA”).

5Absent a finding in their favour, it is not clear whether the respondents oppose the substance of the applicant’s Request.

DECISION

Request to add parties

6Pursuant to Rule 1.7(b) the Tribunal has the power to add or remove a party. Pursuant to Rule 1.5 it may do so on the request of a party or on its own initiative.

7Section 46.3(1) of the Code provides that employers are vicariously liable for the actions of their employees. At the same time, the fact that a corporate respondent may also be liable for the conduct of an employee is not a basis upon which to insulate that employee from personal liability for her or his own conduct that violates the Code.

8Neither party’s submissions on the request to add the two proposed organizational respondents were helpful. It is worth considering the issue within the framework of the Tribunal’s jurisprudence.

9In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal held that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(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?

10The first part of this test requires assessing whether it is useful to name the proposed additional respondents. In the present case, it is clear that the two proposed organizational respondents are implicated in the applicant’s allegations and could be found to have violated the Code if the applicant establishes his allegations as true.

11At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud are applicable to requests to add individual respondents and requests to remove them. In this case, the Persaud factors do not apply because there is no request to add or remove personal respondents.

12At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the application or response, and prejudice to the other parties. There is no basis on the information before me to conclude that it would be unfair in the circumstances to grant the Request.

Request to strike applicant’s Form 10

13The respondents’ objections to the applicant’s Request relate to the scope of disclosure at the hearing. Section 36(3) of the RHPA deals with a “record of proceedings”, or a “report, document or thing prepared for or statement given at such proceeding”.

14The respondents may wish to rely on this provision to exclude documents that would otherwise be required to be disclosed pursuant to the Tribunal’s Rules, or to prevent the applicant from admitting documents into evidence at the hearing. However, it is premature at this stage in the proceedings to grant relief based on the inadmissibility of documents when no evidence is yet being admitted.

Request to correct and remove Interim Decision

15As for the applicant’s request regarding “corrections” to the Interim Decision, his objections are of an evidentiary nature. By way of “corrections”, he asks the Tribunal to make specific findings of fact. Yet, the Tribunal has not yet heard any oral evidence in relation to the allegations. It will be up to the parties at the hearing to establish the facts as they allege. The background summary of facts described in the Interim Decision was based on the submissions of the parties, and includes matters that are contested. The Tribunal, as the trier of fact, will make findings in due course upon reviewing all the evidence.

16It is worth reminding the parties that compliance with the Rules is important. Deadlines ensure fairness to the other parties. Complying with procedural directives helps ensures the case will be processed efficiently. Being combative with other parties, or with the Tribunal, is not helpful.

ORDER

17The Tribunal orders the following:

a. The applicant’s request to add the University of Toronto and the University Health Network as organizational respondents is granted. The style of cause is amended to reflect the addition of the two additional respondents. The Tribunal shall deliver copies of the pleadings and all submissions on record to them, and the parties are directed to ensure the two organizational respondents are properly served with any future correspondence or documents.

b. The applicant’s request to “correct” the Interim Decision is denied, as is his request to remove the Interim Decision from the database.

c. The respondents’ request to strike the content of the applicant’s Request is denied.

18The Tribunal will schedule two days of hearing in this matter. The applicant is reminded that this will be his opportunity to call his witnesses and present the evidence that he believes supports his allegations. He may wish to consult the Applicant’s Guide and the Guide to Preparing for a Hearing Before the HRTO, which are both available on the Tribunal’s website, www.hrto.ca, or from the Registrar.