HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Cohen
Applicant
-and-
Law School Admission Council
Respondent
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Cohen v. Law School Admission Council
WRITTEN SUBMISSIONS
David Cohen, Applicant
Self-represented
Law School Admission Council and Kristine Jackson, Respondents
Joan Van Tol, Counsel
Sheena Khan, Respondent
James Smith, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in the area of goods, services and facilities.
2In his Application, the applicant alleges that the respondent, Law School Admission Council (“LSAC”), denied accommodation of his disability with respect to the writing of the Law School Admission Test (“LSAT”). He alleges that the individual respondent, Sheena Khan, a test centre supervisor, distracted him during the writing of the LSAT on two occasions, and would not give him a “choice seat”, away from a window and distractions, that she was sitting in. He also alleges that, during an academic hearing that stemmed from the discrimination, the individual respondent, Kristine Jackson, a member of LSAC’s Subcommittee on Misconduct and Irregularities in the Admission Process (the “Subcommittee), continued to support LSAC’s regime of discrimination by finding against him.
3The purpose of this Interim Decision is to address Requests for Orders During Proceedings (“Requests”) to have the individual respondents, Ms. Jackson and Ms. Khan, removed as parties to the Application.
REQUESTS TO REMOVE INDIVIDUAL RESPONDENTS
4In Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), the Tribunal made the following observations about the naming of individual respondents in applications before the Tribunal, at paras. 4 and 5:
[4] Pursuant to Rule 14(b) of the Tribunal’s Rules of Practice, the Tribunal has the power to “add or remove a party”. In exercising this power in relation to the potential removal of personal respondents, the Tribunal may want to have regard to similar principles as have been applied when deciding whether to exercise the Tribunal’s discretion to add a personal respondent. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, 2008 HRTO 14, 2008 HRTO 14, 2008 HRTO 14 at para 42:
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.
[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.
5In their Request that Ms. Jackson be removed as a party, the respondents, LSAC and Ms. Jackson, submit that any and all actions taken by Ms. Jackson were taken on behalf of LSAC, and there is no compelling reason to continue the proceeding as against her. With respect to the factors set out in Persaud, they also submit that: the applicant clearly associates the activities of Ms. Jackson with LSAC and seeks to impose liability for the same acts on LSAC; LSAC accepts liability, if any, for Ms. Jackson’s conduct as she was at all times relevant to the Application acting on behalf of LSAC’s Subcommittee; there is no issue as to the ability of LSAC to respond to or remedy the alleged Code infringement; the applicant does not seek any specific remedy from Ms. Jackson; and, no prejudice would be caused as a result of removing Ms. Jackson, as LSAC is accepting liability, if any, for her actions.
6In opposing the Request to remove Ms. Jackson, the applicant submits that Ms. Jackson was operating under an “arm’s length” Subcommittee designated by LSAC’s Board of Trustees. He submits, therefore, that LSAC cannot take responsibility for Ms. Jackson.
7Having regard to the factors in Persaud, LSAC is alleged to be liable for the conduct of Ms. Jackson in the Application, and LSAC has clearly indicated that it accepts liability, if any, for her actions. In the circumstances, I do not accept that there is any issue as to the deemed or vicarious liability, if any, of LSAC for the conduct of Ms. Jackson, or any issue with respect to LSAC’s ability to respond to or remedy the alleged Code infringement in this matter.
8In addition, having regard to the allegations in the Application concerning Ms. Jackson, which relate to her duties as a member of LSAC’s Subcommittee, it does not appear that it would be appropriate to award an individual remedy against Ms. Jackson, should an infringement be found, and it also does not appear that the applicant is seeking any such remedy. There is no compelling reason, therefore, to continue the Application as against Ms. Jackson, nor is there any apparent prejudice to the applicant should Ms. Jackson be removed. In my view, it is appropriate that Ms. Jackson be removed as a party to the proceeding.
9In her Request that she be removed as a party, Ms. Khan submits that she was a contract service provider performing proctoring services on behalf of LSAC, on a part-time basis. She is otherwise employed full-time. She submits that she had no role in providing or making accommodations, and had no communication with the applicant prior to the date of his exam. She submits that she complied fully with LSAC policies, procedures and training in the discharge of her duties. She also submits that she had no authority, and did not purport to exercise any authority, that could properly form the subject matter for a remedy under the Code, and the applicant will not suffer any prejudice by her removal as a party.
10The applicant agrees that Ms. Khan had “no say” in his accommodation request made to LSAC. He submits, however, that he asked Ms. Khan to accommodate him at the exam by giving him the chair in which she was sitting and she said “no”. He submits that this accommodation was not beyond Ms. Khan’s means, position, or authority. The applicant submits that Ms. Khan is liable for discrimination for refusing to give him “choice seating”.
11In his Application, the applicant alleges that both LSAC and Ms. Khan failed to accommodate his disability-related needs with respect to the writing of the LSAT. In the circumstances, I am satisfied that the first three factors set out in Persaud favour the removal of Ms. Khan. There does not appear to be any issue as to the deemed or vicarious liability, if any, of LSAC for the conduct of Ms. Khan in allegedly failing to accommodate the applicant’s disability-related needs while providing proctoring services on behalf of LSAC, or any issue with respect to LSAC’s ability to respond to or remedy the alleged Code infringement in this matter.
12With respect to the fourth and fifth factors in Persaud, having regard to the allegations, it does not appear that it would be appropriate to award an individual remedy against Ms. Khan, should an infringement be found. The applicant’s allegations against Ms. Khan impugn her conduct in the performance of her proctoring duties. There is no suggestion that she was acting outside the course of her duties in such a manner that would make it appropriate to award an individual remedy against Ms. Khan should a violation of the Code be found. It also does not appear that the applicant is seeking an individual remedy against Ms. Khan. In my view, there are no compelling reasons in the circumstances to continue the Application as against Ms. Khan, nor is there any apparent prejudice to the applicant should Ms. Khan be removed. I find that it is also appropriate that Ms. Khan be removed as a party to the proceeding.
ORDER
13The individual respondents, Kristine Jackson and Sheenah Khan, are removed as parties to the Application, and the style of cause is amended accordingly.
14I am not seized.
Dated at Toronto, this 5th day of February, 2013.
“Signed by”
Brian Eyolfson
Vice-chair