HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Janet Blommesteyn
Applicant
-and-
The Regional Municipality of York Police Services Board
Respondent
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Blommesteyn v. Regional Municipality of York Police Services Board
WRITTEN SUBMISSIONS
Janet Blommesteyn, Applicant
Self-represented
The Regional Municipality of York Police Services Board, Respondent
Stephen Maio, Counsel
Introduction
1This is an Application filed on October 12, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of disability, age and reprisal.
2The respondent The Regional Municipality of York Police Services Board (the “Board”) has filed a Response denying the allegations in the Application and this matter is scheduled for hearing in Toronto on March 11, 12 and 13, 2013.
3This Interim Decision addresses a number of Requests for Order during Proceedings (the “Requests”) filed by the applicant on July 26, 2012, seeking the production of documents and to add five individuals as respondents to the Application. The individuals that the applicant seeks to add as parties are officers employed by the Board. In the Request, the applicant does not provide any explanation as to why she seeks to add these individual respondents at this time.
4The Board opposes the applicant’s production Request on the basis that it is fully prepared to comply with its obligation to disclose its arguably relevant documents and it has received from the Registrar an extension of time until September 10, 2012, to deliver these documents to the applicant. As such, it is the respondent’s position that the Request for production is premature.
5The Board also opposes the applicant’s Request to add individual respondents on the basis that all of the proposed individual respondents were officers acting within the scope of their employment and that the Board is vicariously liable for their conduct. The Board also takes the position that it would be burdensome to add these individuals as respondents and there is no rationale to include them as parties. The Board also notes that it can comply with the applicant’s Request for production without adding these individuals as respondents.
Request for Production
6I agree that the Request for production is premature since the respondent must deliver its arguably relevant documents by September 10, 2012. The Request for production is denied, at this time, and the applicant, if necessary, can raise any production issues after she has had the opportunity to review the respondent’s arguably relevant documents.
Request to add parties
7The 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?
8The Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31, states, 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?
9The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them; Boukort v. Securitas Canada Ltd., 2009 HRTO 890, at para. 6.
10I have reviewed the pleadings filed by the parties and I decline to add the individuals as respondents to the Application. Even if I accept as true, for the purposes of this Request, that there are allegations against these individual respondents which could support a finding that they have violated the Code, I find that there are no compelling reasons to add them as respondents. The allegations against them do not raise the kinds of issues, like accusations of harassment, that the Tribunal has typically found constitute such reasons. The Board has accepted vicarious liability for the conduct of the proposed individual respondents. There is no issue as to its ability of the Board to implement any remedy imposed by the Tribunal which would require adding these individuals as respondents.
Order
11The Tribunal Orders:
a. The applicant’s Request for production is denied; and
b. The applicant’s Request to add five individual respondents is denied.
12I am not seized of this matter.
Dated at Toronto, this 14th day of August, 2012.
“Signed by”
Geneviève Debané
Vice-chair