HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Viktor Mubili

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of the Attorney General

Respondent

INTERIM DECISION

Adjudicator: Alan G. Smith

Date: August 17, 2011

Citation: 2011 HRTO 1541

Indexed as: Mubili v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Viktor Mubili, Applicant ) ) Self-represented

Ontario (Attorney General), ) Debbie Gibbins and ) Baaba Forson, Counsel Moreen Jakubczyk, Respondents )

BACKGROUND

1This Application, filed January 26, 2011, arises from family law litigation in Milton. The applicant alleges that various actions of court staff relating to the filing of documents discriminated against him on the basis of race and sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). He also alleges reprisals contrary to the Code.

2A summary hearing was conducted December 16, 2010. The Tribunal decided in favour of allowing the Application to continue. See Interim Decision dated January 12, 2011, 2011 HRTO 91.

3The respondents filed a Response on March 7, 2011, and on March 8, 2011, also filed a Request for Order During Proceedings (Tribunal Form 10) requesting removal of the personal respondents from the Application. This Interim Decision deals with that Request.

4The applicant filed a Reply to the Request on March 22, 2011. Essentially, the applicant makes two arguments in objection to the removal of the personal respondents:

a) That the issue is "res-judicata" because it was, "previously rejected by the Tribunal at the December 16, 2010 Hearing and it is therefore unfair and unjust to re-litigate it"; and

b) That there are, "compelling judicial reasons" not to remove the personal respondents.

5The applicant also asks that the Tribunal conduct a conference call with the parties before making a decision on the Request.

ANALYSIS

Applicant's Request for Conference Call

6Section 5.1(1) of the Statutory Powers and Procedure Act R.S.O. 1990, Chapter S.22, provides that:

A tribunal whose rules made under section 25.1 deal with written hearings may hold a written hearing in a proceeding.

Tribunal Rule 3.5 states:

The Tribunal may conduct hearings in person, in writing, by telephone, or by other electronic means, as it considers appropriate. However, no Application that is within the jurisdiction of the Tribunal will be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with these Rules.

7In accordance with the usual practice of the Tribunal, I find that it is appropriate to deal with the present Request by way of written submissions, and therefore deny the applicant's request for a conference call hearing.

The "Res Judicata" Argument

8In the Interim Decision of January 12, 2011, following the summary hearing of December 16, 2010, the Tribunal decided only that it could not find that there was no reasonable prospect that the Application would succeed. The adjudicator also stated, "it is not appropriate to make any findings with respect to the applicant's allegations. I heard no sworn testimony, and the respondents have not yet been provided with the opportunity to submit a formal Response to the Application." I find therefore that the Tribunal has not previously dealt with the issue of whether or not to continue the Application with the personal respondents.

Removal of Personal Respondents

9Rule 1.7(b) of the Tribunal's Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:

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.

10As noted by the applicant in his submissions, the Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5:

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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?

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.

11The respondents argue that all five parts of the Persaud test have been met and therefore the two personal respondents should be removed as parties to the Application.

12I agree. It may be that the actions or decisions of the personal respondents are relevant to the issues in the Application, but this is true of many Applications in which responsibility ultimately rests with an institutional respondent. Indeed, as the applicant himself appears to acknowledge in his submissions, the Application is largely based on the allegation that the institutional respondent has failed, "...to enforce its rules, procedures and policies and...to have a system to deal with discrimination". Decisions or actions taken by institutional respondents are necessarily effected through individual employees or officers, acting in the course of their employment. In that regard, I find that although the allegations impugn the conduct of the individual respondents, the overarching claim is one based on a pattern of alleged discrimination by various entities and procedures of the institutional respondent.

13In sum, applying all the factors set out in Persaud, I find that all the personal respondents should be removed as parties to the Application. There is no issue of the institutional respondent's ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. In my view, leaving these individuals as respondents has the potential to prolong and make the hearing process more complicated.

ORDER

14The personal respondents shall be removed from the Application. The style of cause is amended accordingly.

15The Application shall be scheduled for a one day hearing on the merits.

16I am not seized.