Barksey v. Laurentian University, 2014 HRTO 1421

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Curtis Barksey

Applicant

-and-

Laurentian University, Leigh MacEwan, Robert Kerr, Denis Mayer, Karen McCauley and Marie-Luce Garceau

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 24, 2014

Citation: 2014 HRTO 1421

Indexed as: Barksey v. Laurentian University

WRITTEN SUBMISSIONS

Curtis Barksey, Applicant

Self-represented

Laurentian University, Leigh MacEwan, Robert Kerr, Denis Mayer, Karen McCauley and Marie-Luce Garceau, Respondent

Kathryn Bird, Counsel

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 goods, service and facilities because of disability, sex, gender identity, gender expression and reprisal. The applicant was a student in the organizational respondent’s Bachelor of Social Work program. This Application concerns the organizational respondent’s decision to remove the applicant from that program and the applicant’s attempts to appeal that decision.

2The writer has been assigned to deal with the preliminary matters arising in this case and to hear the merits of the Application. The applicant has filed several Requests for an Order During Proceedings and several Requests for Tribunal-ordered Inquiries. This Interim Decision addresses all but two of these requests, which are addressed in a Case Assessment Direction that shall be delivered along with this Interim Decision.

Requests for Production/Particulars

3On June 18, 2014 the applicant filed a Request for an Order During a Proceeding seeking production of documents and another seeking particulars. On July 17, 2014, the applicant filed another Request seeking production of documents and particulars. On September 8, 2014, the applicant filed another Request seeking particulars. It is unnecessary to comment on the substance of these requests because they are all premature. Rules 16 & 17 of the Tribunal’s Rules of Procedure (the “Rules”) provide timelines for disclosure of documentation, witnesses and witness statements prior to the hearing of the merits of an Application. Those timelines do not commence until the Tribunal issues a Notice of Confirmation of Hearing and the parties are generally not required to make any disclosure until the deadlines set by the Rules. This matter has not yet been scheduled for a hearing and the Tribunal has not yet issued a Notice of Confirmation of Hearing in this matter. In these circumstances, the applicant’s Requests for documents and particulars are premature and are dismissed.

Requests for Tribunal-ordered Inquiries

4The applicant filed three Requests for Tribunal-ordered Inquiries on July 7, 2014 and another on September 8, 2014. All of these Requests are dismissed. Section 44(1) of the Code states as follows:

At the request of a party to an application under this Part, the Tribunal may appoint a person to conduct an inquiry under this section if the Tribunal is satisfied that,

(a) an inquiry is required in order to obtain evidence;

(b) the evidence obtained may assist in achieving a fair, just and expeditious resolution of the merits of the application; and

(c) it is appropriate to do so in the circumstances.

Rule 20.2 provides in part as follows:

A Request for a Tribunal-Ordered Inquiry under Rule 20.1 must:

a) Describe the evidence or nature of the evidence to be obtained;

b) Explain why the evidence is necessary to achieve a fair, just and expeditious resolution of the Application;

c) Describe the efforts already made to obtain the evidence; and,

d) Propose terms of reference for the inquiry

5These Requests are also premature. A Tribunal-Ordered Inquiry is not a substitute for the normal disclosure and production requirement of the Tribunal’s Rules of Procedure. See White v. University of Ottawa, 2009 HRTO 1057. These Requests are also premature. The applicant provides no reason why the documents and information he seeks are needed at this early stage of the proceeding. In my view, much of the information the applicant seeks to obtain also goes well beyond the scope of this Application. As noted above, the Tribunal’s Rules provide for the production of all arguably relevant documents in advance of the hearing and the Tribunal does not normally order the production of documents outside of the timeframes set out in Rules.

Requests to Add Parties

6On June 18, 2014, the applicant filed a Request for an Order During Proceedings seeking to add Sara Kunto as an individual respondent to this Application. On July 7, 2014, the applicant filed Requests seeking to add Roger Couture, Francois Boudreau and Lise Dutrisac as individual respondents to this Application. The respondents file a Response to a Request for an Order regarding these Requests on July 14, 2014.

7The 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?

8The 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.

9The Requests are denied. There are no allegations in the Application that could sustain an allegation that any of the proposed individual respondents violated the Code rights. In my view, the same is true regarding the applicant’s submissions to support these Requests. Ms. Kunto is identified as an employee of the organizational respondent who dealt with an access to information request by the applicant. The applicant is clearly unsatisfied by the outcome of that process, but did not identify any action by Ms. Kunto that would amount to a violation of the Code. Mssrs. Couture and Boudreau and Ms. Dutrisac are, respectively the Dean of the Faculty of Professional Schools, the Director of the School of Social Work, and a Human Rights Advisor at Laurentian University. The applicant asserts that these proposed respondents did not comply with the organizational respondents policies, particularly with respect to human rights. Failure to comply with a policy is not in itself a Code violation. The applicant’s submissions regarding these three proposed respondents are speculative and do not indicate how their actions are connected to any of the prohibited grounds of discrimination on which the Application is based. Moreover, all of the proposed respondents are employees of the organizational respondent and there is no indication that any of them were acting outside the scope of their employment. The organizational respondent is vicariously liable for their actions pursuant to section 46.3(1) of the Code and the organizational respondent has in any event accepted responsibility for their actions. Accordingly, there is also no compelling reason to add these respondents to the Application.

Request to Amend, June 18, 2014

10On July 7, 2014, the applicant filed a Request for an Order During Proceedings in which he seeks to amend the Application to amend the remedies he requests and to add allegations to the Application. The respondents filed a Response to the Request on July 17, 2014 in which they consent to the proposed amendments, subject to two exceptions, as follows:

1. Allegations regarding the conduct of the organizational respondent and its personnel in a proceeding before the Information and Privacy Commissioner, pursuant to the Freedom of Information and Protection of Privacy Act (“FIPPA”); and,

2. A request that the Tribunal order the organizational respondent to pay to have all of the students enrolled in the applicant’s Social Work courses to attend the Tribunal hearing.

11I agree with the respondents’ submissions. The Tribunal has no jurisdiction to review proceedings under FIPPA and nothing in the applicant’s submissions regarding his access to information requests to the organizational respondent (paragraphs 219 to 245 of the submissions) suggests that the organizational respondent’s actions had any connection to the Code. The applicant’s concern appears to be related to his ability to obtain documents to support his case in this Application. Pursuant to Rule 16, the parties shall be obliged to disclose all arguably relevant documents in their possession well in advance of the hearing, once the hearing has been scheduled. Each party is responsible for the costs of procuring the attendance of his or her witnesses. There is no basis for requiring the respondents to pay for the cost of the applicant’s witnesses.

Request to Amend, September 8, 2014, Privacy Issues

12The applicant filed a Request for an Order During Proceedings on September 8, 2014 in which she seeks to amend the Application to include allegation regarding Ms. Kunto’s conduct regarding his access to information request of the organizational respondent. As noted above, I have already declined to add Ms. Kunto as an individual respondent to this Application or to add allegations regarding his access to information request and proceedings under FIPPA. The applicant’s submissions in this Request provide no basis for revisiting those conclusions. The Request is denied.

Order

13The Tribunal orders as follows:

1. The applicant’s Request to amend the Application, dated June 8, 2014, is granted with the exception that:

a. the allegations set out in paragraphs 219 to 245 of the submissions regarding proceedings before the Information and Privacy Commissioner shall not be added to the Application and;

b. The Tribunal shall not require the respondents to pay for the applicant’s witness to attend the hearing of this matter.

2. The other Requests addressed in this Interim Decision are dismissed.