HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mafario Amicucci
Applicant
-and-
York Police Services Board, Chris Parsons, Maurizio Gentili and Guy Guindon
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Amicucci v. York Police Services Board
WRITTEN SUBMISSIONS
Mafario Amicucci, Applicant
Self-represented
York Regional police Service and District 4, Chris Parsons, Maurizio Gentili and Guy Guindon, Respondents
Stephen Maio, 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 with respect to services.
2To briefly summarize the Application it alleges that the respondents harassed and discriminated against the applicant during an arrest on January 26, 2010; that the respondents were negligent in the handling of certain evidence and; that the applicant was again arrested on June 9, 2011 in retaliation because he had filed this Application. The respondents have denied any violation of the Code.
3This Interim Decision is to deal with a number of procedural issues and Requests for Orders During proceedings (“Requests”) which have been filed by the parties:
a. The respondents’ Request to remove the personal respondents;
b. The applicant’s Request to add Guy Guindon as a personal respondent;
c. The applicant’s Request for production of documents; and
d. To order the respondent to address certain allegations in the Application.
Request to remove the personal respondents
4Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 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.
5The 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 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.
6The respondents seek the removal of the respondent Chris Parsons, one of the arresting officers, and the respondent Maurizio Gentili, an officer who was involved in collecting evidence for the crown and who allegedly reprised against the applicant by having him arrested on June 9, 2011.The respondents state that these personal respondents were acting during the course of their employment and that the Board accepts liability for their conduct.
7On the face of the Application, it is apparent that Chris Parsons’ conduct with respect to the harassment allegation is central. The allegations of reprisal against Maurizio Gentili are also central to the Application. Reprisal is similar to an allegation of harassment in that an individual remedy may be sought regardless of the fact that the Board acknowledges vicarious liability for any conduct. It is unclear at this stage in the proceeding as to whether a remedy will be awarded against these two personal respondents. Therefore, I find that it is appropriate, at this time, that they remain respondents to the Application.
Request to add a personal respondent
8The 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?
9The applicant seeks an order to add Guy Guindon as a personal respondent to the Application. Guy Guidon was one of the arresting officers on January 26, 2009 and in the Application he is referred to as the “unknown officer”. He is alleged to have made discriminatory and harassing comments to the applicant during the arrest. The applicant states that he only became aware of the name of the second officer when he received the respondents’ documents.
10The respondents oppose the applicant’s Request to add PC Guindon on the basis that he was acting within the scope of his employment and that the Board accepts liability for his conduct. They submit that there is no compelling reason to add PC Guindon as a respondent to the Application.
11On the face of the Application, the applicant has alleged that PC Guindon engaged in conduct which could constitute harassment and therefore could support a finding of a personal remedy against him. I note that the request to add PC Guindon could have been sought earlier, and the applicant could have requested particulars of the second arresting officer’s name sooner. However, the respondents were at all times aware, of the identity of the second arresting officer. I note that the respondents did not identify by name PC Guindon in their Response. Having found that PC Parsons should remain as a respondent, I find that it is also appropriate that PC Guindon who was present at the January 2009 arrest also be made a personal respondent in this matter. The applicant’s request to add Guy Guindon as a personal respondent is granted.
Production Issues
12The applicant filed a Request for production on September 14, 2012. On September 21, 2012, the respondents responded that this Request was premature. It is unclear at this time what production remains outstanding. The respondent must file a detailed response to each document sought by the applicant.
Responding to Allegations in the Application
13The Application includes a letter dated September 1, 2011 in which the applicant makes allegations of retaliation for having filed the Application. In its Response the respondents have not provided a response to these allegations. I find that it is appropriate to direct them to do so at this time.
Order
14The Tribunal Orders as follows:
a. The respondent’s Request to remove Chris Parsons and Maurizio Gentili as respondents is denied;
b. The applicant’s Request to add Guy Guindon as a personal respondent is granted and the style of cause is accordingly amended;
c. Within 7 days of the date of this Interim Decision the respondents must deliver to the applicant and file with the Tribunal:
i. A detailed response to the allegations contained in the September 1, 2011 letter included in the Application; and
ii. Submissions with respect to any outstanding production issues that stem from the applicant’s September 14, 2012, Request for production which should include a detailed response if it opposes the disclosure of any document sought;
d. The applicant must within seven days:
i. Of receiving the respondents response to the September 1, 2011 letter, provide a reply, if he wishes; and
ii. Of receiving the respondents submissions with respect to outstanding production issues, provide his reply if he wishes.
Dated at Toronto, this 9th day of January, 2013.
”signed by”
Geneviève Debané
Vice-chair