Bondar v. Ontario (Northern Development and Mines), 2014 HRTO 246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bradley Bondar

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Northern Development and Mines; and Ontario Northland Transportation Commission

Respondents

AND BETWEEN

Lisa Buck

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Northern Development and Mines; and Ontario Northland Transportation Commission

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: February 21, 2014

Citation: 2014 HRTO 246

Indexed as: Bondar v. Ontario (Northern Development and Mines)

WRITTEN SUBMISSIONS

Bradley Bondar, Applicant

Julie D. Lefebvre, Representative

Her Majesty the Queen in Right of Ontario as represented by the Minister of Northern Development and Mines; and Ontario Northland Transportation Commission, Respondents

Daniel Huffaker, Counsel

Lisa Buck, Applicant

Self-represented

Introduction

1These two Applications allege discrimination with respect to goods, services and facilities on the basis of disability under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). They were joined for the purpose of mediation, but mediation failed to resolve the matters. Both Applications are now ready to be scheduled for hearing, and both involve the availability of accessible buses in Northern Ontario.

consolidation of applications and request by buck to add a respondent

2On October 3 and November 21, 2013, the Tribunal issued Case Assessment Directions inviting the parties to file submissions on the possible consolidation of the Applications, and on Ms. Buck's request to add Ontario Northland Transportation Commission ("the Commission") as a respondent. The Commission has already been added as a respondent in Mr. Bondar's Application, 2013 HRTO 366.

3The respondents oppose both the addition of the Commission as a party in Ms. Buck's Application and the consolidation. The applicants are in favour of the consolidation.

4The 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?

5The first issue involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. Ms. Buck is self-represented. She has clearly alleged, by adapting the submissions of Mr. Bondar's representative, that the bus she must now use is not accessible. This allegation could support a finding that the Commission violated the Code.

6With respect to the second issue, 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 requests to add individual respondents, and I do not see that they are significant in my analysis of the present case which involves adding an organizational respondent with an existing organizational respondent. There are no individual respondents here.

7Finally, with respect to the third issue, 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. The Commission has already been added as a party in Mr. Bondar's Application. It must participate to defend the allegations that its bus service is not accessible to people who have disabilities like Mr. Bondar appears to have. I have not been persuaded that the Commission would be prejudiced by being added as a respondent to Ms. Buck's Application, given that Ms. Buck appears to have similar disabilities. I therefore grant Ms. Buck's request to add the Commission as a respondent.

8Similarly, with the Applications consolidated, the length of a consolidated hearing would be significantly less than the length of two hearings. In my view, the Applications should be consolidated.

9Rule 1.7(d) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

10The Applications raise common issues of fact and law, essentially that the applicants do not find the bus service in Northern Ontario accessible. Holding a single hearing would avoid a multiplicity of proceedings, additional expense, and delay. It would avoid witnesses having to appear twice, the repetition of evidence, and the risk of inconsistent results. The respondents argue that Ms. Buck's Application includes an allegation that the announcement to eliminate train service for passengers in Northern Ontario is discriminatory, and therefore consolidation might unfairly lengthen the hearing. Given that Mr. Bondar withdrew that allegation, it is not clear to me that Ms. Buck does still intend to pursue that allegation. If she does wish to pursue that allegation, unlike Mr. Bondar, the Tribunal may provide further directions for preliminary steps so that the in-person hearing might be more streamlined and focus on the allegation that the bus service is not accessible.

11In all the circumstances, Ms. Buck's request to add the Commission is granted and the Applications are consolidated so that they will be heard together.

next steps

12Within 30 days, Ms. Buck must clarify in writing to the Tribunal and the other parties whether she is still representing herself. She also must clarify whether she intends to pursue the allegation that the announcement to eliminate train service for passengers in Northern Ontario is discriminatory, noting that Mr. Bondar has withdrawn that allegation.