HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Henry Freitag

Applicant

-and-

Midland ServiceOntario Centre

Respondent

INTerim DeCisION

Adjudicator: Brian Eyolfson

Date: September 28, 2011

Citation: 2011 HRTO 1770

Indexed as: Freitag v. Midland ServiceOntario Centre

1This Application was filed on May 31, 2010, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and alleges discrimination on the basis of disability in the area of goods, services and facilities. In his Application, the applicant named “Minister of Transportation, Kathleen Wynne” as a respondent. The Application concerns events alleged to have occurred at the Midland ServiceOntario Centre on May 17, 2010.

2The respondent submitted a Response to the Application, dated March 4, 2011, wherein the respondent added “Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government Services” as a respondent. The respondent submitted, however, that neither the Minister nor Ministry of Transportation, nor any other Crown entity, are correct respondents to the Application. The respondent named Midland ServiceOntario Centre as an affected person in the Response, and submitted that the operator of the Midland ServiceOntario Centre is an independent legal entity distinct from the Crown.

3On April 8, 2011, the Tribunal shared the respondent’s Response with the applicant, and issued a Notice to Named Affected Person to Midland ServiceOntario Centre. The applicant was directed to address the respondent’s assertion that neither the Minister, nor a Ministry, are correct respondents, and that they should be removed as parties to the Application, by April 22, 2011, but did not do so. The applicant was provided with a further opportunity to address this issue in a Case Assessment Direction, dated June 21, 2011.

4In correspondence to the Tribunal dated June 22, 2011, the applicant sought direction on whether he should file a new Form 1 (Application) with Midland ServiceOntario Centre as a respondent, or “use the old form and institute the new respondent”. On June 23, 2001, the applicant also filed with the Tribunal, and delivered to Midland ServiceOntario Centre, a Reply to the respondent’s Response, wherein he identified whether Midland ServiceOntario Centre should be the respondent as an issue, and sought direction.

5In a second Case Assessment Direction, dated August 2, 2011, the applicant was directed to confirm whether or not he sought to add Midland ServiceOntario Centre as a respondent to the Application, and, if so, to provide submissions in support of his request. He was also directed to confirm whether he wished the currently named respondents to remain as respondents to the Application, or whether they should be removed. The respondents and Midland ServiceOntario were provided with an opportunity to respond in writing to any submissions made by the applicant.

6In correspondence dated August 8, 2011, the applicant indicated that he “selected ‘Midland Service Ontario Centre’, … as the only respondent.” Neither the respondents nor Midland ServiceOntario Centre have provided a response to the applicant’s correspondence and the time for doing so has passed.

7In the circumstances, the Tribunal will treat the applicant’s correspondence as a request to remove the currently named respondents, and add Midland ServiceOntario Centre as a respondent. The currently named respondents are removed as parties to the Application.

8With respect to the applicant’s request that Midland ServiceOntario Centre be added as a respondent, Rule 1.7(b) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may add a party. Tribunal jurisprudence has articulated the following factors with respect to adding 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?

See Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

9As the applicant is seeking to add an organizational respondent, the first and third factors are relevant to determining his request. The first factor has been held to involve a low threshold - the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code. The third factor considers whether the addition of the proposed respondent as a party would cause substantial prejudice to that party’s ability to make full answer and defense that cannot be alleviated by procedural orders of the Tribunal. See Marchese v. Fortinos, 2009 HRTO 25.

10In his Application, the applicant alleges that when he visited Midland ServiceOntario Centre, there were about 28 individuals waiting to be served and the line-up went outside in the mall corridor.” He alleges that, as a person with a disability, he has great difficulties standing and walking and he had problems making the public understand that he could not stand in line for about 25 minutes. He asserts that there should be a “proper system in operation” to serve the disabled in a fair manner.

11Having reviewed the Application, in the absence of a Response from the respondent, it appears that there are facts alleged which, if proven, could support a finding that the proposed respondent violated the Code.

12In considering whether it would be fair in all the circumstances to add Midland ServiceOntario Centre, the proposed respondent was provided with Notice of the Application, albeit as an affected person, within one year of the time of the alleged events. In addition, the proposed respondent has not responded to the applicant’s confirmation that it should be added as a party to the Application. Consequently, there is no apparent prejudice such that it would be unfair to add the proposed respondent as a party to the Application. This is not a final determination of the issue of prejudice.

ORDER

13The currently named respondents are removed as parties to the Application, Midland ServiceOntario Centre is added as a respondent to the Application, and the style of cause is amended accordingly. Midland ServiceOntario Centre is directed to file a Response (Form 2) to the Application within 35 days of the date of this Interim Decision.