Munroe v. Ottawa (City), 2012 HRTO 1807

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kirk Munroe

Applicant

-and-

City of Ottawa

Respondent

INTERIM DECISION

Adjudicator: Eric Whist

Date: September 20, 2012

Citation: 2012 HRTO 1807

Indexed as: Munroe v. Ottawa (City)

WRITTEN SUBMISSIONS

City of Ottawa, Respondent

David Patacairk, Counsel

Introduction

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 the provision of services and accommodation because of disability, receipt of public assistance and reprisal. This Interim Decision addresses the request made by the City of Ottawa, the corporate respondent, to remove four personal respondents and the applicant's failure to provide an amended Application, as directed.

2A summary hearing was held to consider the applicant's Application on February 22, 2012. In a Decision dated March 12, 2012, 2012 HRTO 511, the Tribunal dismissed part of the Application. It dismissed the applicant's allegations that he was discriminated against in relation to an application for social housing. The Tribunal determined that there was no reasonable prospect that these allegations would succeed.

3The Tribunal did determine that the Application would proceed in relation to the applicant's allegations that he was subject to discriminatory treatment while living at the Carling Family Shelter, a shelter administered by the City of Ottawa. These allegations relate to the actions of the City of Ottawa and four of its staff the Application named as personal respondents.

4In its March 12, 2012 Decision the Tribunal also directed the applicant to provide an amended Application setting out his allegations in more detail to clarify what actions the applicant was alleging constituted discrimination on the basis of disability, receipt of public assistance and reprisal. The applicant was directed to deliver his amended Application to counsel for the remaining respondents and file it with the Tribunal by no later than March 30, 2012. The expectation was once an amended Application was filed the respondents would be able to deliver to the applicant and file with the Tribunal a Response.

5The applicant was also directed to indicate why he was of the view that the remaining personal respondents were necessary parties to the Application.

6On April 27, 2012 the applicant wrote to the Tribunal saying that he did not understand what the Tribunal wanted. He did not provide an amended Application or submissions as to why the four City of Ottawa staff he named as personal respondents were necessary parties.

7On May 18, 2012 the Tribunal issued a Cases Assessment Direction ("CAD") stating that the applicant would be provided one further chance to provide more details as to what discrimination he was alleging took place while he was living in the Carling Family Centre. The CAD sets out the Application's allegations that appeared to potentially relate to the Code. The applicant was also asked to provide submissions on why the personal respondents should continue to be named as respondents. The applicant has not responded to this CAD.

8On July 6, 2012 the City of Ottawa wrote to the Tribunal denying the Application's allegations of discrimination as set out in the Tribunal's CAD. It asked that the application be dismissed on the basis that the applicant has no reasonable prospect of succeeding or, in the alternative, that the Tribunal dismiss the Application in the course of a hearing on the merits.

9On July 19, 2012 the Tribunal issued a Notice of Hearing to the parties to indicate that a hearing of the Application was scheduled for March 13, 2013. This has not been scheduled as a Summary Hearing.

10On August 22, 2012 the City of Ottawa and the personal respondents filed a Request for an Order During Proceedings to remove the personal respondents.

11The applicant has not responded to this request. On August 20, 2012 the applicant did write to the Tribunal submitting that he did have a disability at the time he was living at the Carling Family Centre. He provided medical documentation to support this contention.

REQUEST TO REMOVE PERSONAL RESPONDENTS

12The City of Ottawa submits that it is alleged to be liable for the same conduct as the named personal respondents, namely that it subjected the applicant to discriminatory treatment while living at the Carling Family Living Centre. It submits that there is no issue regarding the City of Ottawa's vicarious liability for the conduct of the personal respondents should liability be found.

13The City of Ottawa submits that there are no allegations that the personal respondents acted outside their duties as employees of the city and there is no prejudice to the applicant to remove the personal respondents as they are employees of the City of Ottawa which has taken responsibility for defending the allegations.

14The Tribunal's decision in Persaud v. Toronto District School Board, 2008 HRTO 31 identifies a number of factors to be considered when considering whether to remove a personal respondent. They are:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. Is there any issue raised as to the corporate respondent's deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

15I am satisfied that the personal respondents should be removed as named parties. I agree with the City of Ottawa's submissions. I am satisfied that there is no compelling reason to continue proceedings against the personal respondents.

FAILURE TO PROVIDE FURTHER AN AMENDED APPLICATION.

16The applicant was directed on two occasions to provide an amended Application in order to provide clarify his allegations. The applicant has failed to do so. As a consequence the applicant needs to understand that at a hearing it is open to the Tribunal to not allow him to present evidence about facts or issues that are not described in his Application (see Rules 6.2 and 5.7 of the Tribunal's Rules of Procedure).

17It is noted that the Application does not make clear on what basis the applicant alleges discrimination on the grounds of receipt of public assistance in relation to his time at the Carling Family Living Centre. Consequently, the Application only proceeds in relation to allegations of discrimination based on disability and reprisal.

18The City of Ottawa will now be required to file a Response to the Application.

DIRECTIONS

1. The personal respondents are removed and the style of cause is amended accordingly.

2. The Application will continue in the Tribunal's process. The Tribunal will serve the Application on the respondent. The respondent is directed to file its Response within 35 days of receiving the Application in accordance with the Tribunal's Rules.

3. The applicant may file a Reply to the Response within 14 days of receiving the Response in accordance with the Tribunal's Rules.

19I am not seized of this matter.