HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
C.M. and J.H. by his next friend S.H.
Applicants
-and-
Toronto Catholic District School Board
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: C.M. v. Toronto Catholic District School Board
WRITTEN SUBMISSIONS
C.M. and J.H. by his next friend S.H., Applicant ) Self-represented
Toronto Catholic District School Board, Respondent ) Sharon Duffy, Counsel
1The purpose of this Interim Decision is to address the respondents’ Request for Order During Proceedings (Form 10) to consolidate the above applications, remove an organizational respondent, remove the individual respondents and dismiss the Applications for delay. The applicants did not file Responses to the Request for Order and the time for so doing has now passed.
CONSOLIDATION
2Rule 1.7(d) 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 consolidate or hear Applications together.
3The applicant, J.H., is a grade 5 student enrolled in the respondent Board. Application 2010-06186-I was brought on his behalf by his mother acting as his litigation guardian. The applicant in file 2010-05964-I is the father of J.H. Both Applications allege discrimination in the provision of services on the basis of race, colour and association contrary to the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
4Although Application 2010-06186-I also cites the ground disability, the allegations in both Applications are identical and cover both applicants. Whatever differences there are between the Applications are minor and appear to be of no import. On their face, it would appear that the applicants intended that they be dealt with together. There is a compelling public interest in avoiding a multiplicity of proceedings and, accordingly, the Tribunal orders these Applications be consolidated.
REMOVING THE ORGANIZATIONAL RESPONDENT
5It would appear that the applicants intended to name both the board and the individual school as organizational respondents to their Applications, although these entities are named in a variety of ways in the Application forms submitted on their behalf. The Toronto Catholic District School Board is incorrectly identified in the Applications as the Toronto District Separate School Board and the name has been amended in the style of cause for the consolidated proceedings accordingly
6Counsel to the respondent Board points out that the individual school is not a legal entity and is, therefore, not properly named as a party. Accordingly, St. Brigid School is removed as a respondent to these Applications and the style of cause for the consolidated proceeding amended accordingly.
REMOVAL OF INDIVIDUAL RESPONDENTS
7Rule 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.
8The 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:
Is there is 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 is 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?
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.
9The applicants name two individual respondents, Rita Seymour and Jim McGee. Rita Seymour is identified by the respondent as J.H.’s teacher in the 2007-2008 school year and Jim McGee, the vice-principal at St. Brigid from 2008 onwards. On the basis of this uncontradicted information (the applicants have submitted no Replies to the Responses filed on behalf of the respondents), it would appear the applicants’ last contact with Ms Seymour was two years before the Application was filed.
10The respondent Board has acknowledged that the two named individuals were acting within the scope of their employment and thus there is no issue with respect to the first three Persaud criteria.
11It is not clear from the particulars in the Applications why these individuals were named and others not. Moreover, the applicants did not file any Response to the Request for Order or otherwise file submissions indicating their rationale for naming Ms Seymour and Mr. McGee as respondents.
12In the absence of any information from the applicants on this issue, the Tribunal has no basis for concluding that they are central to the allegations, that the applicants are seeking individual remedies against them or that any prejudice to the applicants will result if they are removed. Accordingly, Rita Seymour and Jim McGee are removed as respondents to these Applications and the style of cause to the consolidated proceeding amended accordingly.
DISMISSAL FOR DELAY
13Application 2010-5964-I was filed on June 15, 2010 and Application 2010-6186-I was filed on July 8, 2010. The conduct complained of was a series of incidents, culminating in an incident which the applicants state took place in March 2010. The Applications themselves were timely, having been filed within the one-year time limit specified in s. 34(1) of the Code.
14For a variety of reasons, the respondent was not served with the Applications until May 2011. However, the late delivery of the Applications to the respondents does not make them untimely. Accordingly, the respondent’s Request to dismiss for delay is dismissed.
JURISDICTION
15The issue of the standing of C.M. to bring a separate Application on behalf of himself was not raised as an issue by the respondent on which the Tribunal was asked to rule. On the face of the Application filed by him, it is not clear on what basis C.M. alleges he was discriminated against by the respondent. It is not, however, necessary to deal with this issue at this time, other than to flag it for the parties. This issue will be addressed by the assigned vice-chair or member, should this matter proceed to a hearing.
ORDER/DIRECTIONS
16In summary, I have made the following orders/directions:
a. Applications 2010-05964-I and 2010-06186-I are consolidated;
b. St. Brigid School, Rita Seymour and Jim McGee are removed as respondents to these Applications and the style of cause for the consolidated proceeding amended accordingly;
c. The Request to dismiss the Applications for delay is dismissed; and
d. The Tribunal’s jurisdiction over Application 2010-05964-I will be addressed by the vice-chair or member should this matter proceed to a hearing.
17I am not seized of this matter.
Dated at Toronto, this 3rd day of November, 2011.
“signed by”
Naomi Overend
Vice-chair