HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.B. by his Next Friend G.D.
Applicant
-and-
Toronto District School Board
Respondent
INTERIM DECISION
Adjudicator: Alan G. Smith
Indexed as: J.B. v. Toronto District School Board
WRITTEN SUBMISSIONS
J.B., Applicant ) G.D., Next Friend
Toronto District School Board, )
Rivka Gold, Lisa O’Dell, Christine Yim and ) Grant Bowers, Counsel
Mary Ann Lacobucci, Respondents )
Elementary Teachers Federation ) Adam Beatty, Representative
of Ontario, Interested Party )
Background
1This is an Application filed on March 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 applicant, through his next friend, alleges that the respondents discriminated against him on the basis of race, colour and disability.
2The institutional respondent, Toronto District School Board (TDSB), filed a Response and two Requests for Order During Proceeding on April 22, 2010. The institutional respondent requests that the personal respondents be removed from the Application and that it be provided with written permission by the applicant to use, disclose and submit in evidence to the Tribunal the applicant’s Ontario Student Record (OSR).
3The applicant filed a Reply on May 14, 2010 but did not provide submissions in response to the Requests.
4On December 8, 2010, The Elementary Teachers’ Federation of Ontario (ETFO) filed a Request to Intervene in the Application.
5On December 17, 2010, the applicant filed a Response opposing the Request to Intervene. However, other than characterizing the proposed intervention as an “intrusion”, no reasons were given for the objection. The respondents made no submissions with regard to the Request to Intervene.
6In response to a March 18, 2011 Case Assessment Direction the applicant filed brief submissions opposing the respondents’ Requests and ETFO’s Request to Intervene.
Removal of the Personal 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 respondents argue that all five parts of the Persaud test have been met and therefore the four personal respondents should be removed as parties to the Application.
10I agree. It may be that the actions or decisions of the personal respondents are relevant to the issues in the Application, but this is true of many applications in which responsibility ultimately rests with an institutional respondent. Decisions or actions taken by institutional respondents are necessarily effected through individual employees or officers, acting in the course of their employment. In that regard, I find that although the allegations impugn the conduct of the individual respondents, the overarching claim is one based on a pattern of alleged discrimination by various entities and procedures of the TDSB.
11In sum, applying all the factors set out in Persaud, I find that all the personal respondents should be removed as parties to the Application. There is no issue of the institutional respondent’s ability to remedy any human rights violations found, both financially and through organizational changes if ordered by the Tribunal. In my view, leaving these individuals as respondents has the potential to prolong and make the hearing process more complicated. The style of cause will be amended accordingly.
Access to the Ontario Student Record
12The Education Act, R.S.O. 1990 C. E.2, as amended, provides that the OSR is a privileged document, and may not be relied upon in any hearing, except with the written consent of the applicant or his/her guardian.
13However, Tribunal Rule 16.1 provides that:
Not later than 21 days after the Tribunal sends a Confirmation of Hearing to the parties, each party must deliver to every other party (and file a Statement of Delivery):
a) a list of all arguably relevant documents in their possession. Where a privilege is claimed over any document the party must describe the nature of the document and the reason for the claim; and,
b) a copy of each document contained on the list, excluding any documents for which privilege is claimed.
14The OSR is physically in the possession of the TDSB, however due to the provisions of the Education Act, the applicant has legal control of the documents contained in the OSR. Therefore it is the Tribunal’s position that the applicant’s OSR is likely to contain arguably relevant information in the possession of the applicant for purposes of Tribunal Rule 16.
15Given that the Tribunal has yet to issue a Confirmation of Hearing triggering the parties’ Rule 16.1 obligations, I find that it is premature to deal with the TDSB’s Request. However, the applicant’s attention is drawn to the Rule 16 requirement to produce all arguably relevant documents and to s. 43(9) of the Code which provides that, in a hearing, the Tribunal may draw an adverse inference against a party if it is found that that party has failed to comply with Tribunal Rule 16.1.
Request to Intervene
16ETFO is seeking to intervene on the basis that it has an interest in the outcome of the litigation. This Request was made while the personal respondents were still parties to the Application.
17In the circumstances the Tribunal directs ETFO to notify the Tribunal within fourteen (14) days of this Interim Decision if it wishes to maintain its Request to Intervene. If it does not do so the Request will be deemed abandoned.
18I am not seized.
Dated at Toronto, this 29^th^ day of April, 2011.
“Signed by”
Alan G. Smith
Member