S.T. v. Paige, 2012 HRTO 1364

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.T. by her next friend A.T.

Applicant

-and-

Cheryl Paige and Nimet Kara

Respondents

A N D B E T W E E N:

T.T. by his next friend A.T.

Applicant

-and-

Cheryl Paige and Nimet Kara

Respondents

INTERIM DECISION

Adjudicator: Naomi Overend

Date: July 10, 2012

Citation: 2012 HRTO 1364

Indexed as: S.T. v. Paige

WRITTEN SUBMISSIONS

S.T. and T.T., Applicants

A.T. and A.T., Next Friends

Cheryl Paige, Respondent

Glorie Alfred, Counsel

Nimet Kara, Respondent

Laura K. Williams, Counsel

Introduction

1These are two Applications filed by the parents of S.T. and T.T. under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of ancestry, ethnic origin, place of origin, race and reprisal. They were filed on the applicants’ behalf by the applicants’ mother and father. The Applications with respect to each applicant are identical, but for the name of the applicant.

2The Applications name two individuals as respondents. The first, Cheryl Paige, is the Principal at the school attended by the applicants. The second, Nimet Kara, is the Executive Director at the daycare centre attended by the applicants. Although Ms. Paige and Ms. Kara’s actions are specifically identified, the Applications also contain allegations against the school and daycare, as well as other persons associated with the school and daycare.

3The applicants have filed three Requests for an Order During Proceeding (Form 10) in each file. Like the Applications, the Requests in each file are identical in form and content. Although the applicants indicate in some of these Requests that they are also requesting consolidation, it would appear that that the purpose of these Requests is to add multiple respondents to their respective Applications.

4These Requests can be summarized as follows

Request dated June 1, 2012: In this Form 10, filed on June 4, 2012, and re-filed on June 29, 2012, the applicants request that 54 individuals and organizations be added as “respondents/witness” with respect to the allegations against the school, and an additional 34 individuals be added as “respondents/witness” with respect to the allegations against the daycare.

The attached Form 23 shows this Request was delivered to the existing respondents and the Tribunal, but not the proposed respondents.

Request dated June 7, 2012: In this Form 10, filed on June 8, 2012, the applicants request that 41 individuals be added as respondents with respect to the allegations against the school and 31 individuals be added as respondents with respect to the allegations against the daycare. The Form 10 also indicates that the applicants are seeking contact information with respect to the 72 individuals.

As with the earlier Form 10, the attached Form 23 shows this Request was delivered to the named respondents and the Tribunal, but not the proposed respondents.

Request dated June 28, 2012: In this Form 10, filed on July 3, 2012, the applicants request that 13 individual police officers (some of whom are identified by badge number, some by name and some by both badge number and name) from 13 Division be added as respondents. The applicants also request that three individuals from the Children’s Aid Society, two individuals from the Children’s Services and an individual from the Toronto Star be added as respondents.

The attached Form 23 indicates that the Request was delivered by mail or email to the “CAS, Toronto Police 13 division, Kris Rushowy, Colin Fleming (TDSB safe school), Metro Services” as well as the two representatives of existing respondents. Kris Rushowy is the individual at the Toronto Star named by the applicants. It is not clear from the material why it was delivered to Colin Fleming. He is not named in this Request.

5Many of the names in the June 1, 2012 Request are repeated in the two subsequent Requests, and it would appear that the June 7 and June 28, 2012 Requests supersede the June 1, 2012 Request. Assuming this to be the case, the applicants are seeking to add 91 additional individual respondents to their respective Applications.

decision and analysis

6Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. As a general principle, the Tribunal discourages the unnecessary naming of respondents. As pointed out by the Vice-chair Hart in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, this practice “can unnecessarily add to the complexity of proceedings.”

7That being the case, it is incumbent upon an applicant to provide reasons why the individual respondents ought to be added. The 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?

8None of the Requests under consideration contain information from which the Tribunal might answer these questions. It is simply not possible to identify who all 91 proposed individual respondents are, never mind what they are alleged to have done to violate the human rights of the applicants, even when one expands the review to all the materials in the file.

9The applicants have suggested that some of these individuals are necessary because they might be able to “provide answers” to questions not answered by the respondents in their respective Responses, but this is not a basis for adding an individual as a respondent to a proceeding. A respondent is someone who an applicant alleges has violated his or her rights, and against whom the applicant is seeking a remedy, not merely someone who has information relating to an application.

10On this basis alone, the Requests to add the individual respondents must fail. In addition, there are serious procedural defects that prevent the Tribunal from ordering the relief the applicants seek.

11First, with respect to the 71 proposed individual respondents named in the second Request, the applicants have not delivered a copy of the Request (or the Application) to these individuals. The Tribunal cannot make an order without these individuals having notice and the opportunity to file Responses to the Request for an Order.

12Second, the applicants have failed to include contact information for any of the proposed respondents, which is a requirement for all named respondents. In cases where the applicant has failed to provide this information in their initial applications, the Tribunal has refused to proceed against these individuals: See S.G. v. D.C., 2010 HRTO 2146. This reasoning applies equally to individuals the applicant proposes to add at some future date.

13The failure to provide this contact information means that the Tribunal is unable to deliver a copy of this Interim Decision to those individuals affected by it. Within seven days of the date of this Interim Decision, the applicants are ordered to provide the Tribunal with the contact information they used to serve the CAS, Toronto Police 13 division, Kris Rushowy, Colin Fleming (TDSB safe school) and Metro Services.

14If the applicants delivered one or more of the Requests to proposed respondents, other than those named above (or part of the organization named above), they are also ordered to provide the Tribunal, within seven days of the date of this Interim Decision, with the contact information for those individuals as well as the appropriate Form 23, Statement of Delivery.

order

15In sum, I have made the following orders:

a. The applicants’ Requests to add respondents, respectively dated June 1, June 7, and June 28, 2012, are denied.

b. Within seven days of the date of this Interim Decision, the applicants are ordered to provide the Tribunal with the contact information they used to serve the CAS, Toronto Police 13 Division, Kris Rushowy, Colin Fleming and Metro Services.

c. If the applicants delivered one or more of the Requests to proposed respondents, other than those named above (or part of the organization named above), they are also ordered to provide the Tribunal within seven days of the date of this Interim Decision with the contact information for those individuals as well as the appropriate Form 23, Statement of Delivery.