HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Katalin Dekany
Applicant
-and-
Durham College and Stephanie Ball
Respondents
INTERIM DECISION
Adjudicator: David Muir
Decision Date: February 10, 2014
Indexed as: Dekany v. Durham College
1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in the provision of goods and services on the basis age, ancestry, place of origin and reprisal.
2Hearing dates for this case have not yet been scheduled but will be in due course. In her Application the applicant alleges discrimination in the assessment of a group project she undertook in one course. This dispute appears to have rapidly escalated into a number of events which the applicant appears to have characterized as reprisal for her having alleged discrimination contrary to the Code in respect of the initial dispute. I note that the applicant has no direct evidence of discrimination in any of these events but asks that the Tribunal draw an inference from the circumstances of the grade dispute.
3The parties have in turn filed Requests for Order During proceeding (“Requests”). The respondents seek an Order dismissing the Application on the basis that it is frivolous and vexatious and discloses no facts which would tend to support a violation of the Code. The respondents also seek the removal of the personal respondents from the Application. The applicant opposes both these Requests and for her part has asked that the Application be amended by the addition of a new allegation.
No Prima Facie Case
4Although not framed in these terms, this aspect of the respondents’ Request is akin to a request that the Application be dismissed because it has no reasonable prospect of success and I will deal with it in that manner.
5In my view, having reviewed the material in the file, it would not be appropriate at this stage to dismiss this Application as having no reasonable prospect of success. The Tribunal’s Rule 19A provides that where a request for summary hearing is denied it need not give reasons for the denial but in this case the following brief comments are appropriate.
6As previously indicated the genesis of this dispute (at least from the applicant’s side) was a mark dispute in one course. As well, as indicated earlier, the applicant has no direct evidence that any of the grounds claimed were a factor in the grade she received for the project in question but asks that the Tribunal draw an inference from the surrounding circumstances.
7It is not clear that the applicant will be successful in this aspect of the case but I am not prepared to conclude at this stage that there is no reasonable prospect of success in that aspect of it. More importantly this incident is in a sense merely the backdrop to the allegation of reprisal in a series of incidents unfolding over a number of months, for what the applicant claims is having raised a human rights complaint in respect of the grade dispute.
8I appreciate that the applicant will be required to prove that the respondents intended these events as a reprisal for the earlier claim, see Noble v. York, 2010 HRTO 878. I also acknowledge that the respondent has offered a defence to this other aspect of this Application. However at this stage it is not clear, based on the pleadings to date, how it could be said that there is no reasonable prospect that the applicant can establish that this is the case. I point out to the parties that while the initial claim might be unfounded, so long as it was made in good faith, a finding that there was no discrimination in the initial incident of the grade dispute is not necessarily a complete answer to a subsequent reprisal. See Morgan v. Herman Miller Canada Inc., 2013 HRTO 650.
9For these reasons this aspect of the respondents’ Request is denied.
Removal of Individual respondents
10The respondent seeks the removal of three individuals identified by the applicant as respondents. The applicant opposes the Request. This aspect of the Request is granted and the style of cause amended accordingly.
11Rule 1.7(b) of the Tribunal’s Rules 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.
The 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 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.
12The respondent argues that the individuals identified by the applicant were all acting in the course of their employment and the organizational respondent is deemed to be liable for their conduct pursuant to s. 46(3)(1) of the Code. The respondent also argues that where an organizational respondent has been named the Tribunal has discouraged the unnecessary naming of individuals. The respondent argues that the three individuals should be removed unless there is some compelling juridical reason not to do so.
13I agree with the respondent that there is no compelling juridical reason that any of these individual respondents remain parties to this Application.
14I have considered the factors outlined in the cases above and have considered the applicant’s submissions carefully. In general terms she argues that the removal of these individuals will prejudice her case and will strip her of possible remedies. The applicant does not articulate how their removal would prejudice her case and I am not satisfied that it will. I also observe that the applicant is seeking by way of remedy financial compensation and certain policy changes. None of the remedies sought necessarily require anything of the named individuals. I also observe that the applicant refers to long-repealed provisions of the Code in articulating her remedial demands. I will now consider the individuals in turn.
Ms. A
15The respondents argue that the conduct of Ms. A is not a central issue in the Application. The allegation against her is that she issued an Academic Alert in relation to the applicant’s behaviour in Ms. A’s class. The respondent argues that the applicant has pleaded no facts which connect the issuing of the Academic Alert by this individual to the broader narrative of her Application.
16I agree with the respondent in respect to this individual. The applicant argues that the issuing of the Academic Alert was inappropriate and not done consistent with College Policy. The applicant also argues that it being issued was discriminatory.
17It is my view that there is no compelling juridical reason that this individual remain part of the proceeding. It is clear on the face of the material that Ms. A’s involvement in this dispute is far from central. It is also not clear what link there is between the issuing of the Academic Alert and the broader narrative of the case. The applicant’s claim that the Academic Alert was discriminatory or somehow linked to her dispute with Mr. B (the instructor whose disputed mark provided the backdrop to the reprisal claim) appears to be mere assertion or speculation at this stage. As regards the claim that the Academic Alert was not issued in accordance with College Policy this does not in and of itself constitute discrimination. The Tribunal does not have any authority to deal with general allegations of unfairness, such as an alleged failure of the responding party to follow its own policy, assuming that to be the case. I also observe that even if the allegations made in the Academic Alert are inaccurate or unfair this does not necessarily constitute discrimination. In the absence of anything linking this allegation to the broader narrative of the Application there is no compelling reason that this individual remain a party to the proceeding.
18This conclusion does not mean that the applicant cannot lead evidence with respect to her claim that this Academic Alert was discriminatory. The question of what evidence will be led by all of the parties is a matter to be left to the hearing adjudicator.
Mr. B
19Similarly Mr. B is not central to the broader narrative although it was the dispute about his assessment of part of the applicant’s work and her claim that his assessment was discriminatory that is the genesis of the much larger dispute which followed. The applicant argues that Mr. B acted contrary to College Policy in a number of ways and spread rumours about her. As I indicated above, unfairness and failures to follow Policy do not necessarily suggest discrimination on Code grounds. As previously indicated there is no direct evidence of any discrimination on Mr. B’s part and it is not clear that such an inference can be drawn from the circumstances relied upon by the applicant. While it is likely that Mr. B will be an important witness for the respondent, in light of these circumstances as well as the lack of any connection to the broader narrative of reprisal, I am not satisfied that Mr. B remaining a party is necessary to the fair, just and expeditious adjudication of the Application.
Ms. SG
20This respondent is or was the Associate Dean at the material times. Ms. SG accepted the applicant’s complaint and handled it throughout the narrative. It is the alleged defects in the handling of the initial dispute once escalated from Mr. B that appears to be what this Application is largely concerned with. Ms. SG is undoubtedly a central figure in the dispute and almost certainly a key witness. On the other hand the applicant acknowledges that Ms. SG was at all times acting in the course of her duties as an administrator for the respondent. Despite her central role, it is not clear that this individual acted alone as opposed to being the lead in a broader response by the corporate respondent for which it is ultimately responsible. In all of the circumstances I am not satisfied that it is necessary to the fair, just and expeditious adjudication of this dispute that this individual remain a party.
21For all of these reasons the three individuals are removed from the Application and the style of cause amended accordingly.
Request to Amend
22The applicant seeks to amend the Application by the addition of a new allegation related to her claim of reprisal. The applicant also seeks to amend her already detailed Application by the addition of further particulars and the addition of three potential witnesses. The respondent, while opposing the request to amend in part, does not object to the addition of further particulars of allegations already included in this case.
23As regards the addition of further potential witnesses the Tribunal will deak wutg any issue with respect to which witnesses it considers necessary to the fair, just and expeditious adjudication of an Application at the hearing stage and after all parties have disclosed their case. There is no need to consider this aspect of the applicant’s request.
24The new allegation appears to be that the applicant was required to report her alleged academic misconduct on her Para-Legal Licensing Application, which has resulted in an investigation by the Law Society of Upper Canada and has consequently delayed her licensing. It seems to me that this is not so much a request to amend the Application with a new allegation as opposed to particulars of an alleged consequence of allegations already made – the discriminatory issuing of Academic Alerts and complaint to the Office of Campus Safety.
25I also note that the Request is made many months before the hearing dates which have not yet been set. The allegations appear to be timely, although the applicant did not expressly state when she made her application to the Law Society. I have inferred from the circumstances that they occurred sometime after the events described in the Application and likely after it was filed in April 2013 because they appear to relate by definition to events that would have taken place subsequently.
26While I appreciate the respondent’s difficulty with the manner in which the applicant has couched her allegations and observe, as indicated previously, that the applicant will be required to prove that the actions complained of were intended to be in reprisal for her earlier Code claim, nonetheless if the applicant is successful in her central claims these new particulars of the alleged consequences of the respondent’s action may have remedial consequences, which will have to be considered by the Tribunal. I do not agree that the new allegations will unduly affect the conduct of the hearing and given the length of time prior to the hearing the respondent being made aware of them at this stage does not prejudice the respondent in responding to the Application.
27I also acknowledge the respondent’s contention that some of the further particulars of how the respondent’s staff violated College Policy in various respects are irrelevant to the substance of the Application. As I indicated earlier in and of themselves these alleged violations of policy establish little but that does not necessarily make such allegations irrelevant in the context of other evidence which might tend to support an allegation of discrimination and reprisal. The question would become whether a violation(s) of policy were so blatant and or so egregious such that an inference might be drawn from such circumstance. I appreciate as well that the respondent has an explanation for its conduct that may answer the applicant’s allegations, but as with most such disputes evidence will likely be required to resolve these issues.
Orders
28The Tribunal makes the following Orders:
a. The respondent’s request that this Application be dismissed is denied;
b. The respondent’s request that the individual respondents be removed from the Application is granted and the style of cause amended accordingly;
c. The applicant’s Request to amend the Application by the addition of a new particulars and an allegation that the respondent’s discriminatory discipline of her had consequences for her being granted a license by the Law Society of Upper Canada is granted.
29I am not seized of this case.
Dated at Toronto, this 10th day of February, 2014.
“Signed by”
David Muir
Vice-chair
CORRECTION
The decision released on February 10, 2014 incorrectly omitted the named personal respondent Stephanie Ball from the style of cause on the decision’s title page. The error is corrected.
Dated at Toronto, this 21st day of March, 2014.
“Signed by”
David Muir
Vice-chair