HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeffrey McLennon
Applicant
-and-
York University and Mavis Lam
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: McLennon v. York University
1This Application was filed on January 5, 2010, pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) against York University, Linda Lakats, Lewis Cassar (collectively “the respondents”) and Mavis Lam. The respondents filed their response on April 6, 2011. Ms. Lam has not filed a response and it is not clear that she has received a copy of the Application. This matter is scheduled for a hearing on the merits in Toronto on January 23rd and 24th, 2012.
2This Interim Decision addresses a Request by the respondents for an Order During Proceedings to remove Linda Lakats and Lewis Cassar as personal respondents (the “Personal Respondents”). The Personal Respondents are employed by York University (the “Corporate respondent” or the “University”) as professors at the University. This Interim Decision also addresses the applicant’s Request for an Order During Proceedings to compel the University to disclose Ms. Lam’s personal contact information. Ms. Lam was at all material times enrolled as a student in courses offered by the University and was a classmate of the applicant.
3The Application alleges, amongst other things, discrimination in goods, services and facilities on the grounds of race, colour, ancestry and reprisal arising out of a complaint made by the applicant that Ms. Lam refused to let him participate in a group assignment and that she used a racial epithet to describe the applicant. The applicant alleges that the University failed to properly investigate his complaint that he was being purposefully excluded because of his race by Asian students from participating in group projects. Though the Application itself does not identify any allegations against Professor Cassar and Professor Likats, it appears, after reviewing some of the documents filed by the applicant with his Application, that his complaint against the Personal Respondents is that they failed to reasonably respond to his concerns and failed in their duties to organize group projects.
Request for an Order to Remove the Personal Respondents
4The respondents filed detailed submissions in support of their Request for the removal of the Personal Respondents. The respondents take the position that all of the factors in the seminal case of Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persuad”), have been met in this case. The corporate respondent assumes liability for the actions of the Personal Respondents since they were acting within the scope of their duties. Further, the respondents assert that no personal remedies are sought against the Personal Respondents and that it fully assumes liability for any potential damages awarded to the applicant in the event that he is successful in his Application. Further, the Corporate Respondent has the power to implement the non-monetary remedy sought by the applicant being that the University develop a required practice compelling professors to organize students into groups.
5The applicant opposes the respondents’ Request to remove the Personal Respondents on the basis that he is prejudiced and that the Personal Respondents should be required to be examined and cross-examined at the hearing.
6Rule 1.7(b) of the Tribunal’s Rules of Procedure 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.
7The Tribunal further expanded on these principles in Persaud 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.
8I agree with the respondents’ submissions that all the factors in Persaud have been met. In my view, considering all the circumstances, it is appropriate to remove Professors Lakats and Cassar as respondents. All of the allegations against the Personal Respondents are with respect to acts and/or omissions that occurred during the course of their employment and the University has agreed to assume responsibility for their conduct. Therefore, I do not find that there is a compelling reason, in these circumstances, to maintain them as respondents. I do not accept the applicant’s submission that he is prejudiced by the removal of the Personal Respondents because they should be compelled to testify. The fact that thay are no longer respondents to the Application does not mean that they may not testify at the hearing. If the Corporate Respondent does not include them in its list of witnesses and the applicant believes they have relevant evidence, the applicant may request a summons to ensure that their evidence is before the Tribunal.
Applicant’s Request for an Order
9The applicant has requested that the Tribunal compel the University to disclose Ms. Lam’s personal contact information for the purpose of service of documents.
10The University opposes this Request on the basis that this is private information. The University also opposes the applicant’s Request on the basis that Ms. Lam is not a proper respondent in this Application because she was not providing a service to the applicant.
11The Tribunal has the power under its Rules, in order to provide for the fair, just and expeditious resolution of any matter before it, to direct a party or other person to produce information, including contact information. In deciding whether to exercise this power in this case, I find it appropriate to consider the University’s submission about whether the relationship between the applicant and Ms. Lam is covered by the Code. If it is not, then the Tribunal has no authority over the allegations against her and no basis to order her personal information to be disclosed. It is appropriate in these circumstances for the applicant to have any opportunity to respond to this issue. In this regard, the applicant may find it useful to refer to the Tribunal’s decisions in Mehedi v. George Brown College, 2010 HRTO 1486 and Tohidy v. Mckenzie, 2009 HRTO 2264. These, as well as other decisions of the Tribunal, are available at www.canlii.org.
Order
12The Tribunal orders the following:
a. the removal of Linda Lakats and Lewis Cassar as a personal respondents. The title of proceedings shall be amended accordingly to remove their names; and
b. the applicant shall have fourteen days from the date of this Interim Decision to deliver and file submissions on the following issues:
i. Is Ms. Lam a proper respondent to the Application?; and
ii. Do the allegations against Ms. Lam raise an issue of equal treatment with respect to “goods, services and facilities” under the Code?
13The University is not required at this time to respond to any submissions made by the applicant.
14I am seized.
Dated at Toronto, this 24th day of November, 2011.
”signed by”____________
Geneviève Debané
Vice-chair