N.T. by his next friend D.B. v. Durham District School Board, 2014 HRTO 7

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

N.T. by his next friend D.B.

Applicant

-and-

Durham District School Board

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: January 6, 2014

Citation: 2014 HRTO 7

Indexed as: N.T. by his next friend D.B. v. Durham District School Board

WRITTEN SUBMISSIONS

N.T. by his next friend D.B., Applicant

Osborne G. Barnwell, Counsel

Durham District School Board, Respondent

Kathryn J. Bird, Counsel

1This Interim Decision addresses two Requests for Orders During Proceedings (“RFOP”) filed by the applicant. In his November 13, 2013 RFOP, the applicant sought to add nine employees of the organizational respondent as personal respondents to the Application. In his November 27, 2013 RFOP, the applicant sought to amend his Application and to obtain production of certain documents.

scope of application

2By Application dated January 3, 2013, the applicant’s next friend (“D.B.”) alleged that the respondent discriminated against the applicant because of race, disability and age contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). The applicant identifies as black within the school system. He was identified as having a learning disability in 2008. Among other things, D.B. alleged that the respondent marginalized the applicant and administered harsher discipline because of his race and/or disability. She also alleged that the respondent discriminated against the applicant in regards to his placement because of his disability and/or his age.

3The Application is divided into two parts. Under the heading “Brief history prior to mediation”, D.B. described various events which allegedly occurred between January 2010 and December 20, 2011, the date that Minutes of Settlement (“MoS”) were signed by the parties. The second section of the Application outlined events that allegedly occurred after the MoS was signed, specifically between January and October 1, 2012.

4In September 2013, the applicant’s counsel sought to expand the allegations in the Application to include additional allegations pre-dating December 2011. By Interim Decision, 2013 HRTO 1715, dated October 10, 2013, I held that all of the applicant’s allegations that pre-dated December 20, 2011, including those contained the September 2013 letter from his counsel, were subject to a full and final release. Accordingly, I dismissed the applicant’s allegations pre-dating December 20, 2011 as an abuse of process.

Applicant’s Request to Amend Application

5By RFOP dated November 27, 2013, the applicant sought to amend his Application by adding allegations of discrimination and reprisal occurring between January and November 25, 2013. Among other things, the information and allegations contained in the applicant’s Request relate to the respondent’s alleged targeting of the applicant for unjust discipline. The applicant submitted that his request should be granted because he claims the allegations amount to reprisal and a continuation of discrimination because of race and age. The respondent filed no Response to the applicant’s request.

6In determining requests to amend applications, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and whether any prejudice would be caused to the respondent. See, for example, Odell v. TTC, [2001] OHRBID No. 2, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc. 2009 HRTO 926.

7The Tribunal expects applicants to provide reasons for their requests to amend their applications. The Tribunal does not grant requests to amend applications automatically. Applicants who do not provide any submissions in support of their requests risk having their requests denied by the Tribunal.

8However, in the circumstances of this case, I exercise my discretion to grant the applicant’s request to amend his Application. The information and allegations contained in the request are thematically connected to the allegations contained in the initial Application. The information contained in the request relates to the continuum of facts in the initial Application. All of the information and alleged incidents occurred after the date on which the Application was filed.

9While the applicant delayed several months in filing his request to amend, he filed his request within one year of the earliest allegation in his request to amend. In the absence of submissions from the respondent, I am not prepared to find that the respondent would experience any prejudice from the applicant’s delay. The proceedings are still at a relatively early stage. No mediation has yet occurred and no hearing date has been set. As a result, granting the applicant’s request should not unduly prejudice the respondent or unduly lengthen the proceedings in this case.

10For these reasons, I grant the applicant’s request to amend his Application to add the information and allegations contained in Schedule A to his November 27, 2013 RFOP.

Applicant’s request to add personal respondents

Background

11In his November 13, 2013 RFOP, the applicant submitted that the following employees of the respondent should be added as personal respondents: Martyn Beckett, John Bowyer, Doug Crichton, Peter Creer, Lena Glaes-Coutts, Brian Jones, Denis Marton, Warren Palmer, and Andrea Pemberton. Each of these individuals are employed by the respondent either as Director, Superintendent, Principal or Vice-Principal.

12The applicant submitted that these individuals should be added as personal respondents because they violated the Code in their individual capacity. In its Response to the RFOP, the respondent relied upon the Tribunal’s decision in Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”) to submit that the nine individuals should not be added as personal respondents. Among other things, the respondent stated “there is no question of the School Board assuming full responsibility or being capable of making good on any remedy that may be awarded by the Tribunal”. By Case Assessment Direction dated December 17, 2013, I directed the respondent to clarify whether it would accept liability if the Tribunal were to find any violations of the Code arising from the actions of the individuals sought to be added as personal respondents. The responded did not reply to this CAD.

Analysis

13The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

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?

14When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5. These factors focus mainly on whether the organizational respondent is responsible for the conduct of the proposed personal respondent, and whether there is a compelling legal reason for an individual to be named as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his or her conduct is a central issue in the case and extends beyond implementing organizational policies or practices. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 and Persaud at para. 5.

15Of the nine individuals sought to be added as personal respondents by the applicant, only four are actually named in the portion of the Application that has not been dismissed: John Bowyer, Dough Crichton, Warren Palmer and Andrea Pemberton. Since the other five individuals are not named in the Application in relation to any incident post-dating December 20, 2011, I find that there are no allegations in the Application that could support a finding that any of them has violated the Code. Accordingly, I deny the applicant’s request to add the following five individuals as personal respondents: Martyn Beckett, Peter Creer, Lena Glaes-Coutts, Brian Jones, and Denis Marton.

16While Doug Crichton is mentioned once in the portion of the Application that post-dates December 20, 2011, there are no allegations of discrimination against him. Therefore, I deny the applicant’s request to add Mr. Crichton as a personal respondent, as there are no allegations in the Application that could support a finding that he violated the Code.

17The allegations against John Bowyer that post-date December 20, 2011 appear to relate to the following: (i) that he issued a warning letter prohibiting the applicant from accessing the property of Williamsburg Public School, and (ii) that he upheld the applicant’s suspension for swearing at a teacher in May 2012. Based on the Application, it appears that Mr. Bowyer’s conduct is one of the central issues in the Application. I appreciate that it is the respondents’ position that Mr. Bowyer was acting in the course of his employment at all material times. I am also aware that this Application remains at a very preliminary stage and that the Tribunal has very limited materials before it at this stage. However, in my view, one of the issues to be decided by the adjudicator hearing this case likely will be whether Mr. Bowyer exceeded the scope of his employment duties by targeting the applicant for discriminatory treatment as alleged in the Application. In these circumstances, I find there is a compelling legal reason to add Mr. Bowyer as a personal respondent.

18The allegations against Warren Palmer that post-date December 20, 2011 are primarily contained in the amendment to the Application attached as Appendix A to the applicant’s November 27, 2013 RFOP. The primary allegations against Mr. Palmer are that he targeted the applicant for differential treatment and reprised against him contrary to the Code. Based on the Application, it appears that Mr. Palmer’s conduct is also one of the central issues in the Application. In my view, one of the issues to be decided by the adjudicator hearing this case likely will be whether Mr. Palmer exceeded the scope of his employment duties by targeting the applicant for discriminatory treatment and reprisal as alleged. In these circumstances, I find there is a compelling legal reason to add Mr. Palmer as a personal respondent

19The allegations against Andrea Pemberton that post-date December 20, 2011 relate primarily to her alleged targeting of the applicant for unjust discipline. I grant the applicant’s request to add Ms. Pemberton as a personal respondent. Based on the Application, it appears that Ms. Pemberton’s conduct is also a central issue in this Application. As with Mr. Bowyer and Mr. Palmer, one of the issues to be decided by the adjudicator hearing this case likely will be whether Ms. Pemberton exceeded the scope of her employment duties by targeting the applicant for discriminatory treatment and reprisal as alleged. In these circumstances, I find there is a compelling legal reason to add Mr. Pemberton as a personal respondent

20For the reasons set out above, I grant the applicant’s request to add Mr. Bowyer, Mr. Palmer and Ms. Pemberton as a personal respondents.

Applicant’s Production Request

21In his November 23, 2013 RFOP, the applicant requested the production of certain documents from the respondent.

22I find that the applicant’s production request is premature. The Tribunal generally does not address production requests until the parties have complied with their disclosure obligations under the Tribunal’s Rules of Procedure (“Rules”). See Krantz v. Ottawa Police Services, 2009 HRTO 787. The applicant may renew his production request following the deadline for disclosure under Rule 16.1 of the Tribunal’s Rules if he believes that the respondent has not disclosed any arguably relevant documents or information sought in his Request. The Tribunal will consider and rule on the production request if and when it is renewed.

ORDER

23The Tribunal orders as follows:

a. The applicant’s request to add Martyn Beckett, Doug Crichton, Peter Creer, Lena Glaes-Coutts, Brian Jones, and Denis Marton as personal respondents is denied.

b. The applicant’s request to add John Bowyer, Warren Palmer and Andrea Pemberton as personal respondents is granted.

c. The applicant’s request to amend his Application is granted. The Application is amended to include the information and allegations contained in Schedule A of his November 23, 2013 RFOP.

d. The respondent is permitted to file an amended Response addressing the information and allegations contained in Schedule A of the applicant’s November 23, 2013 RFOP. Any amended Response must be filed and copied to the applicant within 21 days of the date of this Interim Decision.

e. The applicant may file a Reply to any amended Response relating to the amendments to the Application contained in Schedule A of the applicant’s November 23, 2013 RFOP. The applicant shall file any Reply with the Tribunal, copied to the respondent, no later than 14 days after the date on which any amended Response was delivered to him.

f. The applicant’s production request is dismissed as premature.

24I am not seized