HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Carla Goodale
Applicant
-and-
Mohawk College of Applied Arts and Technology
Respondent
INTERIM DECISION
Adjudicator: Mary Truemner
Indexed as: Goodale v. Mohawk College of Applied Arts and Technology
WRITTEN SUBMISSIONS
Carla Goodale, Applicant
Denise Goodale, Representative
Mohawk College of Applied Arts and Technology, Martha Fox, Adele Martin, Melynda Broadbent and Diane Barrafato, Respondents
Brenda Bowlby, 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 because of disability. It named as respondents both a corporate respondent and employees of the corporate respondent. This Interim Decision deals with the request of the respondents to remove the employees as personal respondents. It also provides directions with respect to preliminary matters which must be clarified prior to or at the commencement of the hearing which is scheduled to begin on June 5, 2013.
REQUEST TO REMOVE PERSONAL RESPONDENTS
2The respondents filed a Request for Order During Proceedings for the removal of the individuals who were named in the Application as personal respondents: Martha Fox, Adele Martin, Melynda Broadbent and Diane Barrafato. The respondents submit that the only appropriate respondent in this Application is the corporate respondent.
3In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:
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.
4The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, in deciding whether to remove an individual respondent from a proceeding:
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?
5The respondents submit that the personal respondents were acting within their capacity as employees of the corporate respondent in the actions or omissions alleged in the Application. The corporate respondent accepts responsibility for the conduct of the personal respondents.
6The applicant has not opposed the Request. She does not appear to make any allegations that would support a finding that the personal respondents have violated the Code in their personal capacity, nor does there appear to be any concern with respect to the corporate respondent's responsibility and ability to satisfy any remedies. I therefore grant the Request to remove the personal respondents, and the style of cause is amended accordingly.
DISCLOSURE OF DOCUMENTS AND WITNESSES
7The Notice of Confirmation of Hearing alerted the parties to Rules 16 and 17 of the Tribunal's Rules of Procedure. It summarized the requirements as follows:
By 14/12/2012 you must deliver to every other party:
A list of all arguably relevant documents in the party's possession. Where privilege is claimed over any document the party must describe the nature of the document and the reason for making the claim; and
A copy of each document contained on the list, excluding any documents over which privilege is claimed.
Unless otherwise directed by the HRTO, not later than April 22, 2013 you must deliver to every other party and file with the HRTO:
a list of all documents you intend to rely on at the hearing;
a copy of each document on that list for the HRTO;
a copy of every document on that list for each party or confirmation every document has already been provided to the other parties;
a witness list that includes the name of every witness, including expert witnesses, you intend to present to the HRTO;
a statement summarizing the expected evidence of each witness;
where you intend to rely on the evidence of a proposed expert witness, a copy of the expert's written report or a full summary of the expert's proposed evidence and the expert's curriculum vitae;
the Statement of Delivery of the Rule 16.2 list and documents on the other parties.
8The applicant recently filed a witness list on which only her mother's name appears. If the applicant also intends to testify at the hearing, then she must immediately inform the Tribunal and the respondent, and either summarize what she shall say, or confirm that the Application contains a summary of her intended evidence.
9The applicant recently filed a Psychoeducational Assessment Report dated July 2, 2012 by Victoria A. Metzger ("the report")as a document upon which she intends to rely at the hearing; however, I note that the applicant has not included Ms. Metzger on her list of witnesses she intends to have testify at the hearing. This is troubling because the report provides opinion, and is an expert's report which needs to be identified and explained by the expert who wrote it.
10The respondent has requested the production of the underlying documentation of the report. In particular, the respondent is seeking the raw data and testing results obtained by Ms. Metzger. The applicant has neither provided the documentation nor responded to the production request.
11The applicant is directed to immediately notify the Tribunal and the respondent as to whether she intends to call Ms. Metzger as an expert witness. If the applicant does intend to call Ms. Metzger as an expert witness, then she must immediately provide the underlying documentation of the report as requested by the respondent, and provide Ms. Metzger's curriculum vitae in compliance with Rule 17.3. If the applicant does not intend to call Ms. Metzger, then the parties must immediately file their submissions as to whether the report is admissible without the attendance of the expert who wrote it.
REPRESENTATION OF APPLICANT
12The applicant, who had previously been represented by counsel, emailed the Tribunal on February 5, 2013 to advice the Registrar as follows:
Mr. Hennesy [sic]
I am sending you this email to inform you that my mother (Denise Goodale) is representing me so you may share any and all information with her as well as myself.
Thank you,
Carla Goodale
13It does not appear that the applicant copied this email to the respondent.
14The applicant is permitted to have an unpaid family member represent her. The respondent has noted, however, that the applicant's new representative, her mother, is listed as a witness. The respondent argues that the applicant's mother should not be permitted to both represent the applicant and be a witness.
15The applicant is directed to immediately confirm in writing whether she intends her mother to both represent her at the hearing and be a witness. If so, the parties must be prepared to provide submissions and caselaw at the commencement of the hearing with respect to this issue. The respondent must be prepared to address the scenario where the applicant's mother is permitted to testify first, and then represent the applicant. Also, the respondent must be prepared to describe any prejudice that might result in such a scenario.
SUMMARY OF INTERIM DECISION
16The request to remove the personal respondents is granted and the style of cause is amended accordingly.
SUMMARY OF DIRECTIONS
If the applicant intends to testify at the hearing, then she must immediately inform the Tribunal and the respondent, and either summarize what she shall say, or confirm that the Application contains a summary of her intended evidence.
The applicant is directed to immediately notify the Tribunal and the respondent as to whether she intends to call Ms. Metzger as an expert witness. If the applicant does intend to call Ms. Metzger as an expert witness, then she must immediately provide the underlying documentation of the report as requested by the respondent, and immediately provide Ms. Metzger's curriculum vitae in compliance with Rule 17.3. If the applicant does not intend to call Ms. Metzger, then the parties must immediately file their submissions as to whether the report is admissible without the attendance of the expert who wrote it.
The applicant is directed to immediately confirm in writing whether her mother will both represent her at the hearing and testify as a witness.
Dated at Toronto, this 7th day of May, 2013.
"signed by"
Mary Truemner
Vice-chair