HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bile Dore
Applicant
-and-
Toronto Transit Commission and Sayyedsaeed Erfani
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Dore v. Toronto Transit Commission
WRITTEN SUBMISSIONS
Bile Dore, Applicant
Richard Miller, Counsel
Toronto Transit Commission and Sayyedsaeed Erfani, Respondents
Michelle Dobranowski, Counsel
1This is an Application filed under section 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 race, colour, ancestry, place of origin, and ethnic origin.
2The applicant alleges that while riding as a passenger on the respondent’s transit system, he was harassed and subjected to discriminatory comments by a bus driver. He also alleges that he complained, or attempted to complain, to the corporate respondent about the bus driver’s comments and conduct, and to find out the bus driver’s name, but the representatives from the corporate respondent were dismissive of his concerns. If there was an investigation, the applicant was not told about its outcome.
3At the time of filing his Application, the applicant did not know the bus driver’s name, and he filed several Requests for Order During Proceedings (“RFOP”) seeking the name of the bus driver as well as adding him as a personal respondent. In an Interim Decision dated June 18, 2013, the Tribunal ordered the respondent to disclose the name of the bus driver. The bus driver has now been identified as Sayyedsaeed Erfani.
4In a Case Assessment Direction (“CAD”) dated August 30, 2013, the Tribunal directed that Mr. Erfani would receive copies of the materials filed by the parties and the June 2013 Interim Decision, and provided him with an opportunity to file submissions about being added as a personal respondent. The parties were given the opportunity to file submissions responding to Mr. Erfani’s submissions as well as whether Mr. Erfani’s union, Amalgamated Transit Union, Local 113, should be named as an affected party to the Application.
adding a personal respondent
The Applicant’s Submissions
5The applicant submits that Mr. Erfani should be added as a personal respondent as his conduct is central to the issues to be determined in the Application. It is alleged that Mr. Erfani personally made racially discriminatory comments to the applicant while he was on Mr. Erfani’s bus and racially profiled the applicant by subjecting him to over-scrutiny regarding his use of the corporate respondent’s system and being discourteous towards him. Mr. Erfani should be held accountable for his actions. Further, in the event that the Tribunal awards remedies to the applicant, it will not have the jurisdiction to order specific remedies against Mr. Erfani unless he is added as a respondent. Finally, the applicant submits that he intended to add Mr. Erfani as a personal respondent from the outset, however, he did not know the name of the bus driver until the Tribunal ordered the respondent to disclose it. Adding Mr. Erfani at this point will not delay or complicate the Tribunal process.
6The applicant takes no position on the naming of Mr. Erfani’s union as an affected party.
The Corporate Respondent’s Submissions
7In its Response to the RFOP, in addition to denying the allegations against him, the corporate respondent submitted that Mr. Erfani acted within the scope of his employment and that it accepts vicarious liability for Mr. Erani’s actions. It submits that Mr. Erani should not be added as a personal respondent.
Mr. Erfani’s Submissions
8Mr. Erfani submits that it would not be appropriate to add him as a personal respondent. He denies all allegations of discriminatory conduct made by the applicant and submits that at all material times he was acting as an employee of the corporate respondent in accordance with its policies and procedures.
9Both the corporate respondent and Mr. Erfani take no position on the naming of Mr. Erfani’s union as an affected party.
Law and Analysis
10Rule 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 et al., 2008 HRTO 14 at paragraph 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.
11The Tribunal held in Smyth v. Toronto Police Services Board, 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?
12In this case, the central allegations are about Mr. Erfani, his alleged treatment of and his alleged comments towards the applicant, which, if the Application is upheld, could amount to a violation of the Code. Notwithstanding the corporate respondent’s assurance that it is prepared to assume liability of Mr. Erfani’s alleged actions, the Tribunal would not be able to award remedies against Mr. Erfani if the Application is upheld. The reason why the applicant did not initially name Mr. Erfani is because his name was not known to the applicant at the time of filing his Application. It was not until the Tribunal ordered the corporate respondent to disclose it, that the applicant learned of Mr. Erfani’s name. There is no prejudice in adding Mr. Erfani at this point.
13For these reasons, Mr. Erfani is added as a personal respondent and the style of cause is amended accordingly. Mr. Erfani has 35 days from the date of this Interim Decision to file a Response on a Form 2. The applicant shall have 14 days from the date the Response is served on him to file a Reply.
14The Tribunal determines that it is appropriate to identify Mr. Erfani’s trade union as an affected party, given that Mr. Efrani is a member of the trade union. Accordingly, the Tribunal will send a copy of the Application, Response, June 2013 Interim Decision, August 2013 Case Assessment Direction, and this Interim Decision to the affected party at the contact information provided by the corporate respondent. It will also send Mr. Erfani’s Response and any Reply to the affected party. The affected party shall have 14 days from the date the applicant’s Reply to it to file a Request to Intervene if it chooses to do so.
15I am not seized with this matter.
Dated at Toronto, this 7th day of April, 2014.
“Signed by”
Alison Renton
Vice-chair