HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Tracy LeFrense
Applicant
-and-
Blue & White Taxi and Tausef Mumtaz
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: LeFrense v. Blue & White Taxi
WRITTEN SUBMISSIONS
Tracy LeFrense, Applicant
Michelle Mulgrave, Counsel
The Corporation of the City of Mississauga, Respondent
Graham Walsh, Counsel
Blue and White Taxi, Respondent
Baljit Pandori, Representative
Tausef Mumtaz, Proposed Respondent
Did not respond
INTRODUCTION
1This is an Application filed on May 27, 2015, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination on the basis of disability in the provision of services.
2The applicant alleges that on or about February 26, 2015, a Blue & White Taxi ("Blue & White") driver discriminated against her based on her disability by denying her entry into the taxi because she uses a guide dog. The applicant alleges that, following a heated discussion with the taxi driver, she and her spouse were allowed to enter the taxi.
3The applicant indicates that she filed a complaint regarding the incident with the respondent City of Mississauga ("City"). It is undisputed that the City investigated the complaint.
4On July 28, 2015, the City filed a Request for Summary Hearing seeking the dismissal of the Application against it ("request for dismissal"). The applicant subsequently filed a Response to the request for dismissal.
5In July 2015, each organizational respondent filed Responses to the Application and the applicant subsequently filed Replies to the Responses.
6On February 9, 2016, the applicant filed a Request for Order During Proceedings seeking to add Tausef Mumtaz as an individual respondent to the proceedings ("request to add a respondent"). The applicant filed a Statement of Delivery on February 9, 2016 confirming that the request to add a respondent was sent to the organizational respondents and proposed respondent. Neither the organizational respondents nor the proposed individual respondent filed a Response to the request to add a respondent and the time for responding has now passed.
7The purpose of this Interim Decision is to address the request for dismissal and the request to add a respondent.
DECISION AND ANALYSIS
Request for Dismissal
8It is not necessary for the Tribunal to hold a summary hearing to address the jurisdictional issues. The City and the applicant filed written submissions addressing the request for dismissal and my decision is based on the written submissions
9While the Application describes incidents that could amount to a violation of the applicant's Code rights by the respondent taxi company, the applicant identifies no specific acts of discrimination committed by the City, either in the Application, the Reply, or the Response to the request for dismissal. It is uncontested that the applicant filed a complaint with the City regarding the alleged February 26, 2015 incident and the City investigated the complaint. However, the applicant does not allege that she was subjected to differential treatment by the City either in the context of the investigation or otherwise. In the absence of an allegation of discrimination against the City, there is no basis for continuing the Application against it. See Guillemette v. Beck Taxi, 2015 HRTO 192.
10In these circumstances, I find that the applicant does not raise issues against the City within the Tribunal's power to decide.
Request to Add a Respondent
11The applicant seeks to add Tausef Mumtaz as an individual respondent to these proceedings. The applicant indicates that she was unaware of the identity of the driver until she received the City's Response to the Application dated July 28, 2015, which names Tausef Mumtaz as the driver involved in the events giving rise to the Application. The applicant seeks to add Mr. Mumtaz because it is the position of Blue & White that drivers are independent contractors. Blue & White argues that it does not own the vehicles used by the Blue & White drivers and it does not hire, train or employ the taxi drivers.
12The 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?
13The first stage of the analysis involves considering whether there are allegations made in the application that could lead to a finding that the proposed respondent violated the Code. At the second stage, 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 and is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. At the third stage, 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.
14In the present case, the Application includes allegations that the proposed respondent, the driver of a Blue & White taxi, subjected the applicant to discrimination based on her disability. The alleged facts, if proven, could support a finding that the proposed respondent violated the applicant's rights under the Code.
15In its Response to the Application, Blue & White submits that Blue & White taxi drivers are independent contractors, and are not employees of the respondent. The respondent Blue & White also maintains that it does not license or provide training to taxi drivers. It would appear that Blue & White is disputing its liability for the actions of the driver, which I find is a compelling reason to include the proposed respondent. See McIndless v. AAA Best Choice Taxi, 2009 HRTO 1548.
16The individual conduct of the proposed respondent is a central issue in the Application and the respondents have not asserted any prejudice. In the circumstances, I find that it would be appropriate to add the proposed individual respondent as a party to the proceedings.
Order
17The Tribunal orders as follows:
The Application is dismissed as against the City;
Tausef Mumtaz is added as a respondent to this Application and will be provided with a copy of the Application, the Responses and the Replies, along with a copy of this Interim Decision;
Tausef Mumtaz is directed to file a Response to the Application (in Form 2) not later than 35 days from the date of this Interim Decision;
The style of cause is amended to remove the City as a party and to include Tausef Mumtaz as a party.
18I am not seized of this matter.
Dated at Toronto, this 9th day of March, 2016.
"Signed by"
Josée Bouchard
Vice-chair