HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dauda Massaquoi Applicant
-and-
Jane Finch Community Legal Services Respondent
INTERIM DECISION
Adjudicator: Maureen Doyle Date: October 8, 2013 Citation: 2013 HRTO 1698 Indexed as: Massaquoi v. Jane Finch Community Legal Services
WRITTEN SUBMISSIONS
Dauda Massaquoi, Applicant U-Sheak Koroma, Representative
Jane Finch Community Services, Yiadom Akwasi Atuobi-Danso, Issac Birenbaum, Osei Owusu, Charles Mayne, Vilma Cisse, Kenneth Egede, Aurora Cando and Christine Rusk, Respondents Michelle Alton, Counsel
Legal Aid Ontario, Proposed Respondent Tammy Law, Counsel
Introduction
1This is an Application filed on November 21, 2012, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of disability and family status.
2The respondents deny discrimination contrary to the Code.
3This Interim Decision addresses the applicant's request to add Legal Aid Ontario (LAO) as a respondent and it deals with the respondents' request to remove the individual respondents as parties to this Application.
REQUEST TO ADD LEGAL AID ONTARIO AS A RESPONDENT
4The 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?
5The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
6The applicant filed a Request for Order During Proceeding (RFOP) seeking to have LAO named as a respondent in this Application. He submits that LAO is the "parent organization" of the respondent Jane Finch Community Legal Services (JFCLS) and that it has "legal authority" over JFCLS. He submits that he did not name it as a respondent in the first place by "honest mistake". The applicant also submits that LAO is deemed liable for the actions of JFCLS and appears to be relying upon s. 46(3) of the Code, which states as follows:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization. 2006, c. 30, s. 8.
7He also submits that he is not too late in seeking to add LAO as a respondent and that granting his request would not result in prejudice to LAO.
8LAO filed a Response to the applicant's RFOP, objecting to the request and stating that part of its mandate is to "monitor legal aid services provided by clinics and administers funding to clinics from monies provided by the Ministry of the Attorney General". It submits that the legal aid clinics, such as JFCLS, with whom it enters into a Memorandum of Understanding and Funding Agreement, retain their independence and that LAO does not have a role to play in the day to day operations of the legal clinic. It notes that the Funding Agreement provides that it is the clinic's responsibility to ensure that it complies with all federal and provincial statutes, such as the Code. It asserts that it is not the "parent organization" and denies any knowledge of the allegations made by the applicant in his Application. It submits that at "no time did LAO exercise authority or responsibility over the employment issues complained of by the applicant" and that it was never "obliged or authorized to exercise such responsibility". It submits that it never provided "advice, direction or input about the Applicant's employment" with JFCLS. It also submits that the applicant's attempt to add it as a party is late.
9In the present case, the applicant alleges that when he was ready to return from sick leave in July, 2013, and provided a doctor's note to request a return to work on a part time basis, the Interim Executive Director and Board of Directors wrote him seeking further medical information prior to scheduling him for a return to work. He alleges that there was further correspondence between the Interim Director and himself and that ultimately he provided further information to the Interim Executive Director, but that he received no reply. He alleges that there was a failure to accommodate his disability and that he has been discriminated against on the basis of family status. He states that he has "reasons to believe that the Management and Board of Directors decision to bully, harass and discriminate against [me] is motivated by my disability first and foremost, followed by [my] family status".
10By way of remedy, he seeks financial compensation and accommodation in a position at JFCLS without loss of seniority, in addition to a requirement that JFCLS review its policies with respect to "anti-bullying, disability, discrimination and harassment" and provide training to the Board of Directors, managers and employees.
11The applicant has made no allegation relating to the actions of LAO which could support a finding that the proposed respondent violated the applicant's rights under the Code. The applicant has already named the corporate respondent, JFCLS, who employed him and who, he alleges, failed to accommodate him due to disability and family status. His allegations relate to correspondence between himself and the Interim Executive Director of JFCLS. Though he seeks to rely upon s. 45(3) of the Code in his request to add LAO, he has not established how the Interim Executive Director of JFCLS could be found to be an officer, official, employee or agent of LAO. The conduct of the proposed respondent is not an issue in the Application and there is no apparent reason for adding the proposed respondent.
REQUEST TO REMOVE THE INDIVIDUAL RESPONDENTS
12Rule 1.7(b) of the Tribunal's Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 14 at para. 42, the Tribunal set out the general principles that apply to this issue:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be 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". Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent's deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
13The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 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?
In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.
14The respondents filed an RFOP on August 23, 2013, seeking the removal of the individual respondents as parties to this Application. The individual respondents are the members of the JFCLS Board of Directors. They submit that there is a corporate respondent who the applicant has alleged should be found liable for the conduct complained of in the Application, and that there is no issue with regard to JFCLS's liability for the conduct of the personal respondents, or its ability to respond to or remedy any Code infringement found, should any liability be found. In fact, they submit that the remedies which the applicant seeks are within the power of JFCLS. Further, they submit that in fact, none of the individual respondents are alleged to have engaged in the conduct about which the applicant complains in his Application. They also submit that there would be no prejudice to the applicant if the individual respondents were to be removed. They submit that removal of the individual respondents would ensure that the hearing is just, fair and expeditious.
15The applicant submits that the Executive Director receives direction from the Board of Directors of JFCLS, who it alleges were negligent. He submits that it is therefore appropriate to make them "individually and jointly responsible" for their "collective action and wilful blindness". He submits that they should be found "indirectly liable" for the conduct complained of in the Application, and requests that they not be removed as respondents.
16I agree with the respondents' submissions. The applicant has named the corporate respondent, JFCLS, as alleged to be liable for the conduct complained of in the Application. There is no issue raised with respect to the liability of JFCLS for the conduct of the individual respondents, nor is there any issue with respect to the ability of JFCLS to respond to or remedy the alleged Code violation. I am not persuaded that the individual conduct of the individual respondents is a central issue, and in fact I note that there are no specific allegations made against the individual respondents in the Application. I am not persuaded that there would be prejudice to the applicant in removing the individual respondents as parties to this Application. In my view, considering all the circumstances, it is not necessary to involve the individual respondents as parties in order to have a fair, just and expeditious resolution of the merits of the Application.
17The respondents' request to remove Yiadom Akwasi Atuobi-Danso, Issac Birenbaum, Osei Owusu, Charles Mayne, Vilma Cisse, Kenneth Egede, Aurora Cando and Christine Rusk as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.
ORDER
18The Tribunal orders as follows:
a. The applicant's Request to add LAO as a respondent is denied; and
b. The respondents' Request to remove the individual respondents is allowed and the style of cause is amended accordingly.
19I am not seized of this matter.
Dated at Toronto, this 8th day of October, 2013.
"Signed by"
Maureen Doyle Vice-chair