Ledford v. Friendly Times Child Care Centre, 2013 HRTO 934

Human Rights Tribunal of Ontario

B E T W E E N:

Pansey Ledford

Applicant

-and-

Friendly Times Child Care Centre and Nicole Julien

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: May 28, 2013

Citation: 2013 HRTO 934

Indexed as: Ledford v. Friendly Times Child Care Centre

WRITTEN SUBMISSIONS

Friendly Times Child Care Centre and Nicole Julien, Respondents

Daniel Lublin, Counsel

INTRODUCTION

1This Interim Decision deals with a Request for Order During Proceedings filed by the respondents to the Application. The Request asks that the personal respondents be removed as respondents and that the applicant not be allowed to rely on documents that she filed as part of her hearing disclosure obligations because they were sent two days late.

2The applicant was employed as a day care worker. She alleges that the Director of the Centre discriminated against her on the basis of age. This included alleged discriminatory age-related comments. The applicant’s employment with the Centre was terminated in 2012.

3The Application names the Child Care Centre, the Director, and members of the Board of Directors of the Centre.

4The respondents assert that all the named personal respondents were acting in the course of their duties as staff and members of the Board of Directors and ask that they be removed as respondents to the Application.

5At the time the Application was filed the applicant was represented by a para-legal. She is now self-represented. She has not replied to the Request for Order During Proceedings.

6The Notice of Hearing that was sent by the Tribunal on February 23, 2013 set out the Tribunal’s rules regarding disclosure of documents in advance of the hearing. The parties were to file with each other copies of the arguably relevant documents in their possession by March 18, 2013. By August 16, 2013, each party will be required to file with each other and the Tribunal copies of the documents the party intends to rely on, a witness list, and a summary of the evidence each witness is expected to provide.

7According to the respondents’ counsel, he received the applicant’s arguably relevant documents on April 2, 2013 and they were post-marked March 20, 2013. The respondent’s counsel argues that since they were not filed in accordance with the Tribunal’s Rules, the applicant should not be allowed to rely on any of the documents.

DECISION

8The factors typically considered by the Tribunal when determining a request to remove a personal respondent are as follows:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. Would any prejudice be caused to any party as a result of removing the personal respondent?

Persaud v. Toronto District School Board, 2008 HRTO 31

9In this case, it appears that there is no basis for the members of the Board of Directors to be personal respondents to the Application. The corporate respondent has accepted any potential liability in the event that the Tribunal finds that the applicant’s Code-protected rights were infringed. The Board members are not alleged to have done or said anything personally and they are not individually mentioned in the Application. The members of the Board of Directors are accordingly removed as personal respondents.

10The Director, Ms. Julien, is alleged to have personally discriminated against the applicant and her alleged conduct is central to the applicant’s overall allegations of discrimination. At this point in the processing of the Application, I find that it is appropriate for her to remain as a personal respondent.

11The Tribunal’s Rules of Procedure provide:

The purpose of these Rules of Procedure (“Rules”) is to enable the Tribunal to fulfill its mandate under the Code by providing:

1. a fair, open and accessible process to deal with applications made under the Code, and

2. the opportunity for fair, just and expeditious proceedings for the resolution of applications made under the Code.

12Sub-rule 1.1(a) provides:

These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.

13Sub-rule 5.1(a) provides:

A technical defect or irregularity is not a breach of these Rules. Where a party or other person fails to comply with these Rules, the Tribunal may relieve against the failure to comply, with or without terms, as the Tribunal considers appropriate in accordance with Rule 1.1.

14In this case, the minor delay experienced by the respondent’s counsel in receiving the applicant’s arguably relevant documents resulted in no prejudice. The respondents’ request that the applicant not be allowed to rely on the documents she has filed is denied.