HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ian Hansen
Applicant
-and-
City of Toronto and Frank Mitchell
Respondents
- and -
Toronto Professional Fire Fighters’ Association, Local 3888
Intervenor
INTERIM DECISION
Adjudicator: David A. Wright
Date: February 15, 2011
Citation: 2011 HRTO 320
Indexed as: Hansen v. Toronto (City)
WRITTEN SUBMISSIONS
Ian Hansen, Applicant ) Self-represented
City of Toronto and Frank Mitchell, Respondents ) Heather Crisp, Counsel
Toronto Professional Firefighters’ Association, Local 3888 ) Howard Goldblatt, Counsel
[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the ground of disability and reprisal. The Application alleges that the respondent City of Toronto’s (the “City”) actions following an assault by a co-worker while on the job constitute discrimination and reprisal on the basis of disability.
[2] This Interim Decision addresses four issues: (i) the applicant’s Request that the Tribunal reconsider its Interim Decision of December 15, 2010, 2010 HRTO 2493, to the extent that it removed the individual respondents Wayne McLean, Jim Breedin, Bill Simon, Jim Shelton and Kim Jeffries; (ii) the Association’s Request to Intervene; (iii) the City’s Request that the allegations in the Application relating to events in 1999-2000 be dismissed as untimely; (iv) the City’s Request that the Application be dismissed for failing to state a prima facie case.
RECONSIDERATION
[3] I turn first to the reconsideration Request. The individual respondents were removed when the applicant failed to file submissions, as directed by the Tribunal, explaining why they should not be removed. The applicant argues that the failure to file submissions resulted from exceptional circumstances affecting his then representative, paralegal Katharine Brooks. There is no need to consider whether these circumstances justify reconsideration. The applicant has now had an opportunity to make submissions on this issue, and I find that there is no reason that any of these individuals should be respondents.
[4] The Tribunal stated as follows in Boyd v. Toronto (City), 2010 HRTO 607:
As noted in Sigrist and Carson v. London Catholic District School Board, 2008 HRTO 14 at para. 42, “the naming of personal respondents is a practice to be discouraged”. There are various reasons for this. Commencing of a human rights application is a serious matter, and for an individual named as a respondent, there is often, understandably, significant personal stress Individuals should not suffer such stress or feel related stigma unnecessarily.
The effects, however, are not only on the personal respondent. As noted in various cases, naming multiple personal respondents adds to the complexity of the case and often results in delay. The need for the Tribunal to deliver applications to personal respondents and allow them to respond, and the time to address issues of whether they are properly named, will often delay matters to the detriment of applicants, respondents, and the Tribunal’s process.
There are particular reasons to discourage naming a large number of personal respondents in light of the Tribunal’s jurisprudence. It will be rare cases, for example, where many individuals played a “central role” in the alleged discrimination.
[5] Applying the principles set out in Sigrist and Boyd, these individuals should not be respondents. There is no question of the City’s liability for any discrimination alleged in this Application, and it has accepted vicarious liability for any violation of the Code by the alleged personal respondents. There is no “compelling reason” as defined in Sigrist to keep any of them as respondents, as there is no allegation that any of them played the type of central role in the alleged violation of the Code that requires individual liability to be found.
[6] As I understand the Application, it focuses on the City’s investigation of an incident that the applicant alleges resulted in Post-Traumatic Stress Disorder and an alleged failure to respond appropriately in light of these circumstances. Various individuals allegedly played a part in these alleged failures, but all were acting in the course of their employment. It is not necessary, fair or just that these individuals be parties in order for the merits of this Application to be determined. The Request for Reconsideration is dismissed.
[7] Upon a review of the allegations in this Application, I also have difficulty seeing any compelling reason that Frank Mitchell should remain an individual respondent. If the applicant seeks to have Mr. Mitchell remain as an individual respondent, he shall provide written submissions in support of this request within 14 days of this Interim Decision. Mr. Mitchell need not file a Response or take any steps unless the Tribunal directs him to do so.
INTERVENTION
[8] I turn now to the Association’s Request to Intervene. This Request is unopposed and appropriate. The Association is granted leave to intervene.
DELAY
[9] I now address the City’s Request that the allegations about 1999-2000 be struck from the Application as untimely. The applicant makes it clear at para. 11 of his Response to the Request for Order that these references were only intended as background to understand a particular individual’s alleged role in the 2007-08 events. I confirm that these are not alleged incidents of discrimination forming part of the Application, and the City need not respond to them in its Response.
NO PRIMA FACIE CASE
[10] Finally, I turn to the City’s request to have the Application dismissed for disclosing no prima facie case. I note that with leave of the Tribunal, in the exceptional circumstances of this case, the City has not yet filed a Response to the Application. Having considered the City’s Request, the applicant’s Response to that Request, and the City’s letter in response, I make the following directions:
(1) The Tribunal will not rule or hold a hearing on the issue of prima facie case at this time.
(2) The City must deliver to the applicant and intervenor and file a Response in Form 2 within 35 days of this Interim Decision. The Tribunal will not deliver the Response to the applicant or intervenor and the City must do so.
(3) The applicant may deliver to the respondents and intervenor and file with the Tribunal a Reply in Form 3 within 14 days of receiving the Response. The applicant’s attention is directed to Rule 9.1, which requires that an applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application.
(4) The City’s Response need only address the allegations that follow the September 15, 2007 incident and should address the allegations as set out in the Application and the Response to Request for Order. The Response need not address the incident itself, as there is no allegation that the incident itself constituted a violation of the Code.
(5) The Tribunal may give further directions following receipt of the Response and the Reply.
Dated at Toronto, this 15th day of February, 2011.
“Signed by”
David A. Wright
Interim Chair