HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jeff Wilson
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Attorney General, Valerie Neville, Cathy Hiuser, Bernadette Fliss, Linda Denbe and Murray Quinn
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson Date: June 29, 2012 Citation: 2012 HRTO 1294 Indexed as: Wilson v. Ontario (Attorney-General)
WRITTEN SUBMISSIONS
Jeff Wilson, Applicant
Self-represented
Her Majesty the Queen in Right of Ontario as represented by the Minister of Attorney General, Valerie Neville, Cathy Hiuser, Bernadette Fliss, Linda Denbe and Murray Quinn, Respondents
Heather McIvor, Counsel
1This is an Application filed July 29, 2011, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination on the basis of race, ethnic origin, creed, sexual orientation and reprisal in goods services and facilities. In an Interim Decision, 2012 HRTO 538, the Tribunal dismissed the Application in part and permitted the applicant to proceed with the reprisal allegations only. On April 23, 2102, the applicant filed a Request for Order seeking to add Murray Segal and Judy Mann as individual respondents in these proceedings and for disclosure of certain documents. The respondents filed a Response to the Request for Order on May 3 opposing the Request.
Background
2The Application arises out of a letter sent to the applicant, a former employee of the respondent Attorney General, on February 10, 2011 from an officer of the Hamilton Police Service responsible for court services at a courthouse in Hamilton. The letter states that the applicant was seen on a security video entering the courthouse through a side door on December 22, 2010. It states that the courthouse is closed to the public at that time of day, and the applicant can be seen following behind an employee as the employee used an access card to enter the building.
3The letter advised the applicant that since he was no longer employed by any agency at the courthouse, he no longer had authority to enter the building during off hours and his actions constitute an act of trespassing. The letter advised the applicant that he is now prohibited from entering any courthouse in Hamilton, unless there is a legal matter that requires his attendance, and subject to proof of his required attendance.
Adding Respondents
4The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513, that when determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 5, which focus principally on whether there is an organization that is part of the proceeding which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
5In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at paragraph 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.
6The applicant identifies Mr. Segal as the Deputy Attorney General and Ms. Mann as a former court reporter who is currently a Senior Policy and Business Analyst. The applicant provided a history of Mr. Segal’s involvement in employment matters concerning the applicant when he was employed by the organizational respondent. The purpose of the history was to establish that Mr. Segal often communicated with and gave direction to several of the individual respondents. The applicant states that he has “no doubt” that Mr. Segal was aware of the respondents’ retaliatory actions and was responsible for guiding them. The applicant submits that Ms. Mann, as a Senior Business Analyst and former supervisor, would “undoubtedly have input on the retaliatory process which took place.”
7In my view, the applicant’s submissions do not establish any basis for adding Mr. Segal or Ms. Mann to the Application as individual respondents. Neither is identified in the Application and there are no allegations that could support a finding that either proposed individual respondent violated the Code. The Minister of the Attorney General is the organizational respondent to this Application and there is no suggestion that it could not implement any remedy that may be ordered in this case. The applicant’s submissions regarding the proposed individual respondents are speculative and provided no basis for concluding that their conduct is a central issue to the dispute. I agree with the respondents’ submissions that adding the proposed individual respondents would only serve to delay the proceedings and add unnecessary complexity.
Disclosure Request
8The applicant requests disclosure of the formal credentials and documentation of Mr. Mann and of the individual respondents Valerie Neville, Cathy Hiuser and Linda Denbe. The applicant also made the following request:
All correspondence (emails, documented telephone calls, memos etc.) between each of the named parties (added potential added parties) including correspondence between the Deputy Minister and Ms. Cohen, Ms. Cohen and her inquiries as to the Ministry’s participation in my permanent banishment, concerning myself directly and or indirectly from and including the first Human right (sic) complaint I placed against the Ministry of the Attorney General
9At the pre-hearing stage, the Tribunal will generally order disclosure of arguably relevant documents, unless the documents are privileged or raise privacy concerns, see McKay v. Toronto Police Services Board, 2009 HRTO 1220. “Arguable relevance” is not a particularly high threshold, but the party seeking production must establish that the document(s) in question may prove or disprove a fact in issue in the dispute.
10The applicant has provided no basis for concluding that the formal credentials he requested have any relevance to the issues in dispute in this Application.
11Correspondence between and among the individual respondents, if any exists, regarding the decision to prohibit the applicant from courthouses in Hamilton would be arguably relevant and should be disclosed, pursuant to Rule 16 of the Tribunal’s Rules of Procedure. The applicant has not, however, provided any reason to believe that such correspondence does exist. The applicant has given no indication regarding why correspondence regarding “the first Human right (sic) complaint” he placed against the organizational respondent is arguably relevant to the issues in dispute in this Application. The respondent asserts that any communications between Ms. Cohen, who is a Senior Counsel in the Ontario Ministry of Government Services, and Deputy Minister Segal regarding the applicant’s employment or the terms upon which it ended are subject to solicitor-client privilege. I see no basis to challenge that assertion.
Order
12The Request for Order is denied.
13I am not seized of this matter.
Dated at Toronto, this 29th day of June, 2012
Signed by
Douglas Sanderson Vice-chair