HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Bradley Truax
Applicant
-and-
Humber College Institute of Technology and Advanced Learning and Chartwell Food Services
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Truax v. Humber College of Institute of Technology and Advanced Learning
WRITTEN SUBMISSIONS
Bradley Truax, Applicant
No submissions,
Humber College Institute of Technology and Advanced Learning, Respondent
Brenda Bowlby, Counsel
Chartwell Food Services, Respondent
No submissions,
Lynn Newhouse, Shirley Wales, Tracy Mason, Mark Hanna, Jasteena Dhillon and Don Henriques, Respondents
No Submissions
Introduction
1This Application alleges discrimination with respect to services because of disability and it also alleges reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On December 3, 2013, the Humber College Institute of Technology and Advanced Learning (“Humber”) filed a Request for an Order During Proceedings (RFOP) in which it seeks the following orders from the Tribunal: an order to remove the individual respondents as parties to this Application; an order that the applicant provide further particulars and; an order for an extension of the period of time provided to it to file its Response. The purpose of this Interim Decision is to address that RFOP.
Request to Remove the Individual Respondents
3Rule 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.
4The 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.
5The respondent Humber submits that all of the named individual respondents are its employees and that any involvement they had with the applicant was related to their role as employees. It submits that the applicant’s allegations against these individuals relate to actions by them in the course of their employment, rather than in their personal capacities. It submits that it accepts responsibility for the actions of the individual respondents and that it is fully capable of responding to the alleged Code infringement.
6The applicant has not filed a response to the RFOP and the time for so doing has now passed.
7I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve Lynn Newhouse, Shirley Wales, Tracy Mason, Mark Hanna, Jasteena Dhillon and Don Henriques as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.
8The respondents’ request to remove Lynn Newhouse, Shirley Wales, Tracy Mason, Mark Hanna, Jasteena Dhillon and Don Henriques as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.
Request for Particulars
9The respondent Humber submits that the applicant has made several vague allegations which do not meet the requirements of the Tribunal’s direction to applicants completing section 8 of the Application form at Form 1. In particular, it submits that the following allegations include insufficient particulars to permit it to make a Response:
Page 4 of the 10 page attachment to Form 1:
There were issues relating to the reduced course load and OSAP
There were issues relating to frequent insensitive conversations by employees of Humber toward the applicant
There were issues relating to the accommodations relating to specific courses that were not resolved
The applicant was not able to finish the program due to the constant stress he was under from the respondent’s continuous treatment of the applicant on the basis of disability. The applicant states that from the time he applied to Humber College until he stopped attending, he was the subject of continuous discrimination from the respondents.
While he had Tracy Mason, Jasteena Dhillon and Shirley Wales as professors he frequently was denied his accommodations as approved by Humber’s Disability Services
On page 5 of the 10 page attachment to Form 1
The respondents challenged his accommodations, by denying or questioning them
The incidents seemed to increase in severity. First year it was a lot of annoying minor to medium problems. However, the second and final year was “absolute hell”
During the September 2012 to December 2012 semester, the applicant had continuous problems with disability accommodation and policies that interfered with his disability. He was constantly being challenged or denied his accommodation by respondents Tracy Mason, Shirley Wales, and Jasteena Dhillon. The applicant further states that Jasteena Dhillon subjected him to humiliation and discrimination. The applicant states that she refused to reason with him or listen to his concerns regarding accommodations and his disability.
10At part 8 of the Application, the Tribunal directs applicants to describe each event they believe was discriminatory and to be sure to say what happened, who was involved, the day, month and year it happened, and where it happened. The above-noted allegations do not include all of the particulars which are required for the respondent to be able to provide a meaningful Response. Accordingly, within 14 days of this Interim Decision, the applicant is directed to file with the Tribunal and provide to the other parties, particulars which describe each event he believes was discriminatory, say what happened, who was involved, and where and when it happened.
Request of an extension of time to Respond
11The respondent Humber has requested an extension of 30 days after the applicant has filed the required particulars, in order to file its Response. As noted above, the Application as currently drafted does not provide sufficient particulars for Humber to be able to file its Response. An extension of 30 days after the applicant provides the required particulars, is granted.
Orders
12The Tribunal directs as follows:
The respondent Humber’s request to remove the individual respondents Lynn Newhouse, Shirley Watts, Tracy Mason, Mark Hanna, Jasteena Dhillon and Don Henriques, is granted and the style of cause is amended accordingly.
The applicant will file further particulars with respect to the allegations referenced in paragraph 9 of this Interim Decision, within 14 days of this Interim Decision.
The respondent Humber’s request for an extension of time to file a Response 30 days after the applicant has provided the above-ordered particulars, is granted.
13I am not seized of this matter.
Dated at Toronto, this 16th day of January, 2014.
“signed by”
Maureen Doyle
Vice-chair