HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Heather Gibson
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Education and the Director, Provincial Schools Branch
Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Gibson v. Ontario (Education)
WRITTEN SUBMISSIONS
Heather Gibson, Applicant
Toby Young, Counsel
Nancy Sanders, Named Respondent
Jonathan Rabinovitch, Counsel
Introduction
1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on December 19, 2011, and alleges discrimination on the basis of disability in employment. The Application names Nancy Sanders as the only respondent.
2In particular, the applicant alleges that she was subjected to discrimination when she was not hired for a position with her employer, the Ontario Ministry of Education. Ms. Sanders is the Ministry’s Director of the Provincial Schools Branch, and was one of three individuals who interviewed the applicant for the position. The applicant states that she was informed of the results of her interview for the position on December 17, 2010.
3On May 30, 2012, the respondent filed a Response and a Request for Summary Hearing, wherein she denies the allegations of discrimination. The respondent requests that the Application be dismissed by way of a summary hearing, on the basis that she is improperly named in her personal capacity, and that, as the deadline to add another respondent has elapsed in light of s. 34(1)(a) of the Code, there is no reasonable prospect that the Application will succeed. In the alternative, the respondent requests that the Application be dismissed by way of a summary hearing on the basis that the applicant’s allegations are lacking in material fact.
4On August 8, 2012, the applicant delivered and filed a Request for an Order During Proceedings (“RFOP”) to amend the Application. The applicant seeks to have the style of cause amended “to reflect the proper legal name of the provincial government Respondent as ‘Her Majesty the Queen in Right of Ontario as represented by the Minister of Education and the Director, Provincial Schools Branch’” (the “Ministry”). The applicant also requests that Ms. Sanders be removed as an individual respondent, agreeing that she is incorrectly named in her personal capacity. Neither the individual respondent named in the Application, nor the proposed organizational respondent, have responded to the applicant’s August 8, 2012 RFOP, and the time for doing so has passed.
The applicant’s Request for an Order During Proceedings
5In her RFOP to amend the Application, the applicant submits that she is not seeking to add a new respondent, but only to correctly identify the proper respondent, and that the legal test for adding a new respondent is not applicable. In the alternative, the applicant submits that the legal test for adding a respondent is met, in any event, referring to the Tribunal’s decision in Smyth v. Toronto Police Services, 2009 HRTO 1513. In Smyth, the Tribunal found 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?
6The applicant is seeking to amend the Application to name the Ministry, which is both her employer and the employer of the individual respondent, as a respondent, in place of the individual respondent. In my view, the first and third factors set out in the Smyth decision above are relevant considerations in determining the applicant’s request. See Rahimi v. Sales Dynamic, 2011 HRTO 88.
7The first factor has been held to involve a low threshold - the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code. The third factor considers whether the addition of the proposed respondent as a party would cause substantial prejudice to that party’s ability to make full answer and defense that cannot be alleviated by procedural orders of the Tribunal. See Marchese v. Fortinos, 2009 HRTO 25.
8Having reviewed the Application, it appears that there are facts alleged related to an interview process for a position with the Ministry which, if proven, could support a finding that the proposed respondent violated the Code. The applicant explains in her Application that she needs an American Sign Language (“ASL”) Interpreter and a note taker, and that the individual respondent was upset when the applicant brought a note taker to her interview. The applicant alleges, among other things, that she was not hired for the position, whereas an individual who did not have the qualifications that she had was asked to apply for the position. She also alleges that, although no one was hired for the position, individuals lacking experience and knowledge with respect to Deaf education and culture, and ASL were subsequently chosen to act in the position.
9In considering whether it would be fair in all the circumstances to add the Ministry as a respondent, notice of the Application was provided to the named individual respondent, within one year of the alleged events, alleging discrimination with respect to not being hired for a position with the proposed Ministry respondent. In her Response to the Application, the individual respondent submits that, at all times, she was acting in her professional capacity as the Ministry’s Director of the Provincial Schools Branch. The individual respondent submits that it was unnecessary to name her in her personal capacity, referring to the Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31. In Persaud, the Tribunal referred to its earlier decision in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, wherein the Tribunal held that the unnecessary naming of individual respondents should be avoided, and noted that, pursuant to s. 45(1) of the Code, “a corporation is deemed liable for any ‘act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee, or agent”. See also Charpentier v. Metroland Media Group Ltd., 2012 HRTO 1128.
10In the circumstances, I do not agree with the respondent’s earlier submission in her Response and Request for Summary Hearing that any deadline has passed in terms of removing the named individual respondent and adding, instead, an organizational respondent. While the stage in the proceeding at which a request to add a party is made is a relevant consideration in determining whether or not it is appropriate to add a party, the Tribunal may consider requests to add parties at any stage of the proceeding. In my view, the applicant’s request is being made at a relatively early stage in these proceedings. The applicant filed her RFOP prior to the revised August 10, 2011 deadline for filing her Reply to the respondent’s Response. In addition, the proposed respondent has not asserted any actual prejudice in being added as a party, such that it would be unfair to add it as a party to the Application at this stage of the proceeding.
11In the circumstances, I find that it is appropriate to add the proposed organizational respondent as a party to the Application and remove the individual respondent.
Request for Summary Hearing
12The Request for Summary Hearing is denied, without reasons, in accordance with Rule 19A.5 of the Tribunal’s Rules of Practice.
ORDER
13The Tribunal orders as follows:
i. The individual respondent, Nancy Sanders, is removed as a party to the Application, and Her Majesty the Queen in Right of Ontario as represented by the Minister of Education and the Director, Provincial Schools Branch is added as an organizational respondent, and the style of cause is amended accordingly.
ii. The organizational respondent may either file a Response (Form 2) to the Application, or indicate if it is relying upon the Response filed on behalf of the individual respondent, within 35 days of the date of this Interim Decision.
iii. The Request for Summary Hearing is denied.
Dated at Toronto, this 19th day of November, 2012.
“Signed by”
Brian Eyolfson
Vice-chair