Shiell v. London Transit Commission, 2012 HRTO 1925

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilford Shiell Applicant

-and-

London Transit Commission, Voyageur Transportation Services and The Corporation of the City of London Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: October 10, 2012 Citation: 2012 HRTO 1925 Indexed as: Shiell v. London Transit Commission

WRITTEN SUBMISSIONS

The Corporation of the City of London Kelly Dawtrey, 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 services on the basis of disability. This Interim Decision addresses a Request by the respondent, The Corporation of the City of London, that it be removed as a party or that the Application against it be dismissed.

BACKGROUND

2The Application arises out of the applicant's use of transit services in London.

3The Application originally named three respondents. The respondent London Transit Commission ("LTC") identifies itself as a corporation enacted by the City of London Act that provides local public transit services for the City of London. The respondent Voyageur provides para-transit services under contract for London Transit Commission. The Corporation of the City of London (the "City") is a municipal corporation.

4The applicant, who describes himself as a person with a disability uses the specialized transit services of the LTC. The applicant alleges that he has been prevented from taking his segway on the bus, which makes the transit of limited use if he cannot use his mobility device at his destination. The applicant states that there are "three institutions" involved including the two named respondents and the City and that all three entities have denied responsibility, although particulars as to how each entity discriminated against him are not provided. The only respondent specifically mentioned in the narrative is the LTC; specifically the applicant attended a meeting of the LTC where he pled his case and lost.

5Responses were filed by each named respondent. The respondent LTC details its contact with the applicant but denies any violation of the Code. Among other things, LTC states that it is unable to permit the applicant to use his segway on the service for legitimate safety reasons. The respondent Voyageur responds in a similar manner. Voyageur states that it conducted a review of the segway for proper and safe storage during transportation and that it did not meet proper safety standards for loading/unloading and in-vehicle transportation.

6The respondent City also filed a Response denying any direct knowledge of the facts and allegations or involvement in any decisions made by the LTC and/or Voyageur with respect to the applicant and his use of transit services. The respondent states that there is no basis on which allegations of discrimination may be maintained against it and that the Application against it should be dismissed.

7The applicant did not file a Reply to any of the Responses.

8On August 3, 2012, the respondent City filed a Request for an Order During Proceedings requesting that the City be removed as a party or alternatively that the Application be dismissed against it (the "Request"). The City states that the specialized transit services at issue in the Application are owned, managed and controlled by the LTC and not the City pursuant to an attached By-law which is attached to the Request. The City refers to various provisions in the By-law setting out the authority of the LTC and notes that with respect to claims relating to the operation and management of the subject local transportation system, section 21 specifically provides:

All claims, accounts and demands arising from or relating to the operation, management or control of the transportation system or from the exercise of any of the powers of the Commission shall be made upon and brought against the Commission and not upon or against the Corporation [referring to the City] and the Commission may sue and be sued in its own corporate name.

9The City reiterates that it has no contractual or other applicable relationship with Voyageur (which is under contract with LTC) and neither the City nor any of its employees were involved in any decisions that may have been made by either the LTC and/or Voyageur with respect to the applicant and his use of transit services. The City states that other than broad allegations the applicant has not pled any facts or produced any documents that would support a claim for discrimination under the Code against it.

10The respondent City states that its Request is brought on consent of the LTC.

11No other party filed a response to the Request.

12On September 12, 2012, the Tribunal issued a Case Assessment Direction issuing directions to the parties regarding their disclosure obligations under Rules 16 and 17 and directing the applicant to file a response to the Request. The CAD stated that if the applicant did not file a response within seven days of the date of the CAD the Tribunal would proceed to determine the Request based only on the submissions made and the material already filed.

13On October 3, 2012, the applicant emailed the Tribunal. The applicant referenced various personal circumstances and stated that these circumstances had "hindered my ability to do what is expected of me." The applicant went on to specifically state that he was unable to provide a list of documents because he does not have documents to submit (providing a partial response to the direction regarding disclosure obligations) and that he looks forward to arguing his case at the hearing. The applicant did not provide any response to the Request to remove the City.

DECISION

14Based on the material before me, including the absence of any objection, I find it appropriate to dismiss the Application against the City as a respondent. While the applicant made a general allegation in his Application that there are "three institutions involved" and that none of the "groups" will accept responsibility for denying him the service, beyond these general allegations, the applicant does not provide any particulars that would support a finding of discrimination against the City in the Application. Further, the applicant did not file a Reply challenging the City's position that there is no basis on which allegations may be maintained against it.

15Based on the allegations made and the Responses provided, it would appear that the core of the applicant's complaint is against the LTC and the services it is alleged to have not provided either directly or through its contractor, Voyageur and its response to the applicant's overtures in this regard. Further, the By-law referenced by the City would appear to establish that the LTC is an entity capable of being sued in its own corporate name. In these circumstances, where there are no specific allegations made against the City or any other basis on which to support liability, I find that the City is not a proper party.

16In the circumstances, the Request to dismiss the Application against The Corporation of the City of London is granted.

17I remind the parties of my directions in the September 12, 2012 CAD, to file the materials required under Rules 16 and 17. As set out in the CAD, the parties should have regard to C.D. v. Wal-Mart Canada Inc., 2010 HRTO 426 as to the form of witness statements for any witnesses including the applicant.