Sookdeo v. Toronto District School Board, 2016 HRTO 33

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yvonne Sookdeo

Applicant

-and-

Toronto District School Board and Karen Cannata

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: January 8, 2016

Citation: 2016 HRTO 33

Indexed as: Sookdeo v. Toronto District School Board

WRITTEN SUBMISSIONS

Yvonne Sookdeo, Applicant

Self-represented

Toronto District School Board and Karen Cannata, Respondents

Avneet Grewal, Counsel

York University, Proposed Respondent

Joanna Rainbow, Counsel

Introduction

1This Interim Decision addresses the applicant’s request to amend her Application as well as her request to add a respondent. It also addresses the respondents’ request to remove Karen Cannata as a personal respondent. Finally, this decision confirms the appropriate identification of the respondents in the style of cause to this proceeding.

2By Application filed January 21, 2015, the applicant alleged that the respondents discriminated against her because of race, colour, ancestry, place of origin, ethnic origin, disability and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She also claimed that the respondents reprised against her within the meaning of the Code. The applicant is, or was, a student in the Bachelor of Education program at York University. She named Smithfield Middle School and Ms. Cannata as respondents to the Application. In her Application, she alleged that these respondents discriminated against her when they terminated her placement at Smithfield Middle School. Her Application is focused on allegations against the personal respondent who was her mentor teacher during her placement at Smithfield Middle School. She alleged that the personal respondent discriminated against her in the evaluation of her placement and by conspiring to terminate her placement. She also alleged that the personal respondent discriminated against her when she asked her to climb a ladder to retrieve a book and when she asked her to teach when she had lost one of the lenses to her eyeglasses. These incidents occurred in or around January/February 2014.

3The respondents deny that they have violated the Code. The respondents submitted that the appropriate organizational respondent in this matter is the Toronto District School Board and not Smithfield Middle School as listed in the Application.

4A mediation was scheduled to take place December 15, 2015. However, the mediation did not proceed due to a Request for an Order During Proceedings (“RFOP”) the applicant filed shortly before the mediation.

5By RFOP filed December 9, 2015, the applicant sought to amend her Application to add allegations against the respondents. She also sought to add York University as a respondent to the Application and to raise new allegations against this proposed respondent.

applicant’s Request to amend Application as against respondents

6In her RFOP, the applicant sought to add allegations of age discrimination against the respondents arising from alleged events that took place during a prior placement at the Africentric Alternative Elementary School in the fall of 2013.

7The respondents opposed the applicant’s request to amend her Application on the basis that the allegations occurred outside the one year time limit set out in s. 34(1) of the Code and do not form part of a series of incidents within the meaning of that section.

8In 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 the prejudice 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.

9In this case, the applicant is asking to amend her Application to add completely new alleged infringements of her rights under the Code that occurred more than one year before she filed her Application and approximately two years before she filed her RFOP. In my view, the allegations regarding the incidents that occurred at the Africentric Alternative Elementary School would have been untimely if the applicant had included them in her original Application. These allegations occurred more than a year before the Application was filed and, in my view, they do not form part of a series of incidents with the events that took place at Smithfield Middle School.

10As noted above, the Application focuses specifically on the applicant’s placement at Smithfield Middle School and on the alleged actions of the personal respondent who was the applicant’s mentor teacher. There must be some connection or nexus between incidents in order for them to be considered a series of incidents. A series cannot be comprised of incidents relating to discrete and separate issues. I find that the allegations regarding the incidents that occurred at the Africentric Alternative Elementary School are discrete and separate issues as they involve different individuals and they occurred during a different placement at a different school than the incidents set out in the Application. There is no nexus between the incidents that allegedly occurred at the Africentric Alternative Elementary School and the alleged incidents that occurred during the applicant’s placement at Smithfield Middle School. The applicant did not provide any reasonable explanation for her failure to raise the allegations relating to the events that occurred at the Africentric Alternative Elementary School in a timely way. Therefore, even if the applicant had included these allegations in her Application, they would have been untimely.

11Since these allegations would have been untimely if included in her Application, it follows that the applicant should not be permitted to raise these allegations now by means of an RFOP, over two years after the events occurred. The effect of permitting her to amend her Application to add these new allegations would be to permit the use of the RFOP process to circumvent the time limits set out in s. 34(1) of the Code. For these reasons, the applicant’s request to amend her Application is denied.

Request to add York University as a Respondent

12In her RFOP, the applicant requested that the Tribunal add York University as a respondent to the Application. She also sought to add allegations against York University. Specifically, she claimed that a representative of York University “breached confidentialities” and reprised against her for incidents that took place at the Africentric Alternative Elementary School. In addition, she claimed that she was not provided the same support as younger students and that York University discriminated against her by siding with the decisions of both schools to terminate her placements.

13The precise timing of these alleged incidents is not perfectly clear from the RFOP. Some of the allegations listed in the RFOP appear to relate to incidents that occurred during the applicant’s placement at the Africentric Alternative Elementary School. Others appear to have occurred in early 2014. In her Application, the applicant noted that her last conversation with the representatives of York University took place either on February 5 or February 12, 2014. While the timing of the alleged incidents listed in the RFOP is not perfectly clear, what is clear is that these alleged incidents and decisions occurred more than a year before the applicant filed her RFOP seeking to add York University as a respondent. As noted above, the applicant did not make any allegations against York University in her Application. In their Response, the respondents named York University as an affected party in this case. However, the applicant never requested that York University be added as a respondent until she filed her RFOP. She has provided no reasonable explanation for why she did not seek to name York University as a respondent sooner.

14The 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?

15Having considered the factors set out in Smyth, I find that it is not appropriate to add York University as a respondent to this Application. The allegations against York University are new allegations that are not raised in the Application. The applicant is in effect attempting to raise new allegations relating to decisions and/or events that occurred more than a year before her RFOP. If she had sought to file a new Application against York University in relation to the new allegations at the time that she filed her RFOP, her Application would have been dismissed as untimely under s. 34(1) of the Code. The effect of allowing the applicant to add York University as a respondent at this stage would be to permit the use of the RFOP process to circumvent the time limits set out in s. 34(1) of the Code to raise new, separate and untimely allegations against this third party respondent. For these reasons, her request to add York University as a respondent is denied.

Respondents’ Request to Remove Personal Respondent

16In their Response, the respondents requested that the Tribunal remove Ms. Cannata as a personal respondent to the Application. The respondents rely on the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31.

17In Persaud v. Toronto District School Board, 2008 HRTO 31 (“Persaud”), the Tribunal set out a number of factors to consider in determining the question of the removal of individual respondents:

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?

18The respondents submit that the personal respondent should be removed on the basis that Ms. Cannata was acting within the scope of her employment responsibilities and the school board would be vicariously liable for any infringement of the Code arising from her conduct.

19Applying the Persaud factors set out above, I find that it would not be appropriate to remove Ms. Cannata as personal respondent at this stage of the proceeding. Her conduct is a central issue in this case. If an infringement is found, it may be appropriate to make an order against Ms. Cannata in her personal capacity as well as the organizational respondent. Accordingly, I do not find it appropriate to remove her as a personal respondent.

Style of cause

20The respondents submitted that the appropriate organizational respondent in this matter is the Toronto District School Board and not Smithfield Middle School as listed in the Application. They also noted that the applicant had misspelled Ms. Cannata’s last name in the Application. The style of cause has been amended to reflect these changes.

Order

21For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend the Application is denied.

b. The applicant’s request to add York University as a respondent is denied.

c. The respondents’ request to remove Ms. Cannata as a personal respondent is denied.

d. The style of cause has been amended to identify the organizational respondent as the Toronto District School Board and to use the proper spelling of Ms. Cannata’s name.

e. In the circumstances of this case, it is appropriate to reschedule the mediation that did not proceed. The Registrar will advise the parties of the date of the rescheduled mediation by Notice of Mediation.

22I am not seized.