Bains v. Humber Institute of Technology & Advanced Learning, 2016 HRTO 302

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ravinder Bains Applicant

-and-

Humber Institute of Technology & Advanced Learning Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price Date: March 4, 2016 Citation: 2016 HRTO 302 Indexed as: Bains v. Humber Institute of Technology & Advanced Learning

1This is an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which the applicant alleges that the respondent discriminated against him on the basis of prohibited grounds of the Code. In particular, the applicant alleges that the respondent discriminated against him by allegedly penalizing him more harshly than others for mistakes he made in a clinical course he was taking as part of his nursing program.

2This Interim Decision addresses:

a. The respondents' March 1, 2016 request that the Application be dismissed as abandoned;

b. The respondents' January 25, 2016 Request that the personal respondents be removed as parties to the proceeding; and

c. The respondents' January 25, 2016 Request that the merits hearing be cancelled and a summary hearing be convened to determine whether the Application ought to be dismissed on the basis that it has no reasonable prospect of success.

Request that the application be dimissed as abandoned

3The Tribunal issued a September 24, 2015 Notice of Hearing in this matter, advising the parties that they were required to exchange their arguably relevant documents with one another by no later than October 15, 2015, and to send the Tribunal a completed Statement of Delivery confirming that they had done so. In addition, the parties were advised that they were required to provide the documents they intended to rely upon at the hearing and witness statements, summarizing their witnesses' anticipated testimony, by no later than January 25, 2016.

4The respondents complied with their obligations, but the applicant did not.

5Accordingly, in keeping with its standard practice, the Tribunal issued a Case Assessment Direction on February 22, 2016, directing the applicant to provide his arguably relevant documents to the respondents within seven days of the date of the Case Assessment Direction; and, within the same time period, to provide the respondents and the Tribunal with the documents he intended to rely upon at the hearing and witness statements summarizing his witnesses' anticipated evidence.

6The applicant did not respond to the Tribunal directly, but, on February 25, 2016, the respondents' legal counsel forwarded an email it had received from the applicant to the Tribunal. In his email, the applicant stated that he did not have any witnesses or other documents, and intended to rely only on documents that had already been provided.

7The respondents emailed the Tribunal on March 1, 2016, asking that the Application be deemed to have been abandoned by the applicant, in light of the applicant's failure to comply with his disclosure requirements.

8The applicant responded to the March 1, 2016 email, stating that he had no new documents to submit and no witnesses. The applicant took the position that he had "replied" to the Tribunal's Case Assessment Direction.

9The respondents' request that the Application be dismissed as abandoned is denied.

10When the Tribunal dismisses an Application as abandoned, it does not do so as a punitive or remedial measure in respect of a party's failure to comply with the Tribunal's Rules. Rather, when the Tribunal dismisses an Application as abandoned, it does so because it has come to the conclusion that the applicant him or herself does not intend to pursue the Application.

11In this case, the applicant's February 24, 2016 email to the respondents and subsequent March 1, 2016 email to the respondents and the Tribunal make it clear that the applicant intends to pursue his Application. Accordingly, it would not be appropriate to dismiss the Application as abandoned.

12That said, this does not mean that there are no consequences for the applicant's failure to provide documents and/or witness statements as required by the Tribunal's Rules. If an applicant does not provide pre-hearing disclosure of the documents and witnesses he or she intends to present at the hearing, he or she will still generally be permitted to testify about the facts pleaded in the Application and Reply. However, the applicant may be prevented from presenting any documents or witnesses that have not been disclosed in accordance with the Tribunal's Rules: Rules 5, 16.4 and 17.4 of the Tribunal's Rules of Procedure.

13Any issue regarding the scope of evidence the applicant may present at the hearing of the Application will be addressed, if and when it arises, at the upcoming hearing.

Request to remove pesonal respondents

14In the Application that he originally filed with the Tribunal, the applicant named a clinical instructor, Juliette Lalonde, and the Associate Dean of the respondent College's School of Health Sciences, Sheila West-Merker, as personal respondents to the Application.

15The respondents have filed a Request for an Order during Proceedings seeking to have the personal respondents removed as parties to the proceeding.

16The applicant has not filed a response to such Request and the time for doing so has now passed.

17I am satisfied that the personal respondents should be removed as parties to the proceeding, pursuant to the Tribunal's authority under Rule 1.7(b) of its Rules of Procedure.

18In 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 46.3(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.

19The 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:

1. Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

2. 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?

3. Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

4. 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?

5. 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.

20In this case, there is no allegation that the personal respondents were acting in anything other than the course of their employment duties in their interactions with the applicant. Moreover, there is no dispute that the respondent College would be liable for the personal respondents' actions in the event that such actions were found to have infringed the applicant's rights under the Code. Nor is there any reason to think that the respondent College would be unable to remedy the alleged infringement of the applicant's rights under the Code as a result of the personal respondent's actions, if such infringement were found to have occurred. Moreover, the applicant has not opposed the removal of the personal respondents or indicated that he would be prejudiced in any way by the removal of the personal respondents as parties to the proceeding. In the circumstances, it is appropriate to remove the personal respondents as parties to the proceeding and the style of cause is amended accordingly.

Request for a summary hearing

21Finally, I come to the respondents' January 25, 2016 Request for a Summary Hearing in this matter, which Request was filed after the merits hearing was scheduled.

22The Tribunal's Practice Direction on Summary Hearing Requests states that Requests for a summary hearing that are filed after a hearing on the merits has already been scheduled, as this one was, will rarely be granted. In keeping with the Tribunal's general approach in these matters, the March 10 and 11, 2016 hearing on the merits of the Application will proceed as scheduled. The respondents' Request that the merits hearing be cancelled and a summary hearing be scheduled is denied.

23That said, the parties should be prepared to make submissions at the upcoming hearing with respect to whether the Application should be dismissed as having no reasonable prospect of success, in the event that the Tribunal directs them to do so at any point during the hearing.

24The question of whether allegations in an Application have a reasonable prospect of success has most frequently been asked in the context of a "summary hearing". Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

25While a summary hearing is a specific type of preliminary hearing often scheduled at an early stage in a proceeding, it is not the only time when it may be appropriate to ask the parties to address whether an Application has a reasonable prospect of success.

26In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal confirmed that it may be appropriate at a later stage in a proceeding to have the parties address whether an Application ought to be dismissed on the basis that it has no reasonable prospect of success. Frequently, the Tribunal will hear submissions regarding whether an Application ought to be dismissed as having no reasonable prospect of success after hearing the applicant's case in chief, although it may hear such submissions at other points in the hearing process as well.

Orders/directions

27In sum, the Tribunal makes the following orders and/or directions:

1. The respondents' request that the Application be dismissed as abandoned is denied.

2. The respondents' request that the personal respondents be removed as parties to the proceeding is granted.

3. The respondents' request that the merits hearing be cancelled and a summary hearing be convened is denied. However, the parties should be prepared to make submissions at any point during the upcoming hearing, if directed to do so, on whether the Application ought to be dismissed on the basis that it has no reasonable prospect of success.