Human Rights Tribunal of Ontario
Between:
Anthony Doxtdator Applicant
-and-
Hamilton-Wentworth District School Board Respondent
Interim Decision
Adjudicator: Douglas Sanderson Date: March 28, 2011 Citation: 2011 HRTO 605 Indexed as: Doxtdator v. Hamilton-Wentworth District School Board
Written Submissions
Anthony Doxtdator, Applicant: Self-represented Hamilton-Wentworth District School Board, Respondent: Jane Gooding, Counsel
1This is an Application filed on May 21, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The respondents filed a Response to the Application on September 7, 2010, and have made several Requests for Order during Proceeding, pursuant to Rule 19 of the Tribunal's Rules of Procedure. This Interim Decision deals with the respondents' Requests.
Background
2The Application alleges discrimination in the provision of goods, services or facilities because of race, ancestry, ethnic origin, sex, family status, marital status and reprisal or threat of reprisal. The applicant states that the respondents failed to consider his child's aboriginal traditions, culture and history when assessing his educational and psychological needs. The applicant also states that the respondents discriminated against him, a divorced aboriginal man with access (as opposed to custody) to his children, regarding his access to information about his children's education and attendance at school events.
Requests for Order during Proceeding of September 20, 2010
3On September 20, 2010, the respondents filed two Requests for Order during Proceeding. In the first Request, the respondents sought permission to amend the Response. In the second Request, the respondents requested removal of the individual respondents and dismissal of the Application because it discloses no prima facie case of discrimination or reprisal.
Request to Amend the Response
4As noted, the respondents requested permission to amend the Response. The respondents seek to include facts not in their possession when they filed the Response, reorder some of the paragraphs within the Response, correct grammatical errors and rephrase certain passages. The additional facts the respondents seek to include relate to the Family Court proceedings regarding the applicant and his family and will not come as a surprise to the applicant. The applicant did not oppose the amendments and it does not appear that the amendments alter the respondents' position in any way. The respondents' Request to amend the Response is therefore granted.
5The applicant may file a Reply to the amended Response within 14 days of the date of this Interim Decision. In this regard, the Tribunal directs the applicant's attention to Rule 9.1 of the Tribunal's Rules of Procedure, which requires a Reply when an applicant intends to prove a version of the facts different from those set out in a Response.
Request to Remove the Individual Respondents
6The respondents request removal of the individual respondents and amendment to the style of cause accordingly. Rule 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.
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:
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.
7The respondents submit that there are no allegations of discrimination or harassment against either individual respondent and that they were at all material times acting within the scope of their employment. The applicant did not respond to the request.
8I agree with the respondents' submissions. In my view, considering all the circumstances, it is not necessary to involve Mr. Best and Ms. Stephens-Brockbank as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
9The respondents' Request to remove Mr. Best and Ms. Stephens-Brockbank as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.
Prima Facie Case
10The Tribunal granted, in this Interim Decision, the respondent's Request to amend the Response and the applicant is entitled to reply to the amended Response, as noted above. In these circumstances, it is premature to consider whether the applicant has established a prima facie case. The Tribunal may give further direction on this issue following receipt of a Reply or expiry of the deadline for filing a Reply.
Failure to Attend Mediation
11The parties consented to participate in mediation and the Tribunal scheduled a mediation session on the afternoon of March 9, 2011, at the Tribunal's hearing centre in Toronto. The respondents attended. The applicant did not. The applicant also did not inform either the Tribunal or the respondents that he would not attend prior to the session.
12By letter to the applicant dated March 11, 2011, the Tribunal noted the applicant's failure to appear at the mediation without notice. The Tribunal required the applicant to state his intentions regarding the Application within ten days, failing which the Tribunal would deem him to have abandoned the Application. The applicant responded by electronic mail on March 18, 2011. He apologized for not attending the mediation and explained "he had an emergency come up" and was unable to attend. He stated that he wished the Application to proceed to a hearing.
13The respondents, in correspondence with the Tribunal, noted that they attended the mediation at substantial cost and submitted the applicant did not provide an adequate explanation for not attending. The respondents therefore submitted that the Tribunal should deem the Application to have been abandoned.
14Mediation is a voluntary process; therefore, the Tribunal does not require an explanation when an applicant does not attend mediation. The Tribunal is concerned with an applicant's intentions regarding his or her Application following a "no-show". The applicant has clarified his intentions. The inconvenience and cost to the respondents is regrettable and the applicant's failure to notify either the Tribunal or the respondents that he could not attend the session was discourteous. In these circumstances, however, there is no basis for the Tribunal to deem the applicant to have abandoned the Application. The Request is denied.
Order
15The individual respondents shall be removed as parties to the Application and the style of cause amended accordingly.
16I am not seized of this matter.
Dated at Toronto, this 28th day of March, 2011.
"Signed by"
Douglas Sanderson Vice-chair