Austin v. Ontario (Government Services), 2012 HRTO 1586

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leslie Austin

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services and London ServiceOntario Office

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: August 17, 2012

Citation: 2012 HRTO 1586

Indexed as: Austin v. Ontario (Government Services)

WRITTEN SUBMISSIONS

Leslie Austin, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Government Services, Respondent

Heather McIvor, Counsel

1This is an Application filed 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. The applicant alleges the Code has been violated because the London ServiceOntario office in does not have an automatic door opener, and she has no ability to independently gain access to the building. A hearing on the merits is scheduled for November 8, 2012.

2As originally filed, the Application did not name the London ServiceOntario office but only the Minister of Government Services ("Ministry"). The Ministry takes the position that since the office is run by an independent contractor pursuant to a service agreement, it cannot be liable. In a previous Interim Decision dated February 9, 2012, 2012 HRTO 287, the Tribunal held, at para. 2:

At this point it is premature to decide whether the respondent is properly named. It is not clear, at this juncture, whether the respondent could be determined to be liable. The question of the respondent's liability should be determined following evidence and argument at the hearing.

3Following the Interim Decision, each party filed a Request for Order During Proceedings in March 2012. As a result of an administrative error, these Requests were placed before me this week. I apologize on behalf of the Tribunal for the delay.

4The first Request for Order is that of the Ministry. It renews its request for dismissal against it as a preliminary matter because the services are provided by an independent contractor, arguing this should take place following an oral hearing specifically on this matter. The Request to deal with this issue as a preliminary matter is denied. The Ministry is entitled to argue that it should not be liable under the Code because of its contractual arrangements with the London ServiceOntario Office and because the services are provided by an independent contractor. However, the applicant is entitled to argue that the Ministry is responsible for the actions or omissions of the London ServiceOntario Office, or that it violated the Code in failing to ensure that an independent contractor providing services for it would have accessible premises. These issues are best determined following a full hearing. I note that the Tribunal has refused similar requests from franchisors requesting that they be removed from applications involving actions of their franchisees: see Philip v. Giant Tiger Stores, 2009 HRTO 1227; Atkinson v. Three Degrees Restaurant, 2010 HRTO 821; Wozenilek v. McDonalds Restaurants of Canada, 2010 HRTO 1120; E.H. v. Subway 2185559 Ontario Inc., 2011 HRTO 1574.

5The second Request is that of the applicant. She asks that London ServiceOntario Office be added as a respondent. London ServiceOntario Office has not responded to this request. The test for adding a respondent was set out at para. 12 of Smyth v. Toronto Police Services Board, 2009 HRTO 1513:

(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?

6All these factors are met in the circumstances of this case. The allegation that the premises were not accessible could support a finding that London ServiceOntario Office violated the Code. The second question does not apply. In these circumstances, there is no unfairness in adding the proposed respondent, in particular as it received notice as an affected person in December of 2011.

7London ServiceOntario Office is added as a respondent to this Application. London ServiceOntario Office is directed to file a Response in Form 2 within three weeks of today's date. The applicant may file a Reply within four weeks of today's date. The deadline for the filing of witness statements and documents the parties intend to rely upon under rules 16 and 17 is extended to September 28, 2012.

ORDER

8The Tribunal makes the following Order:

1. London ServiceOntario Office is added as a respondent.

2. London ServiceOntario Office shall file a Response in Form 2 within three weeks of today's date.

3. The applicant may file a Reply within four weeks of today's date.

4. The deadline for the filing of witness statements and documents the parties intend to rely upon under rules 16 and 17 is extended to September 28, 2012.