HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

I.T. as represented by her Litigation Guardian M.D.

Applicant

-and-

Toronto District School Board

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: March 23, 2016

Citation: 2016 HRTO 384

Indexed as: I.T. v Toronto District School Board

WRITTEN SUBMISSIONS

I.T. as represented by her Litigation Guardian M.D., Applicant

Self-represented

Toronto District School Board, Respondent

Eric M. Roher, Counsel

Introduction

1This Interim Decision addresses the Request for Order during Proceeding (Request) filed by the respondent for an order removing the individually named respondent.

2The applicant has not filed any submissions in response to the Request.

3The applicant alleges that the respondents infringed her right to equal treatment in her education. The individually named respondent in the Application was the principal of a school that the applicant attended.

4The respondent Board acknowledges that, at all material times, the individually named respondent was an employee of the Board and was acting within the course of his employment. The Board has assumed responsibility for the conduct of this employee should they be found to have violated the applicant’s rights under the Code.

5Rule 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.

6The 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.

7There is no question that the first three factors are met in this case. The corporate respondent is in the best possible position to remedy the discrimination that the complainant alleges is at the root of her experiences with this individual Board employee.

8The full range of remedial options that may be available to the applicant would be unaffected by the removal of the individual respondent. The applicant has requested a remedy of full inclusion and a guarantee of universal access to quality education and if a finding is made in favour of the applicant, the Board will be in the best position to implement an effective remedy.

9The role of the Tribunal is to ensure a fair, just and expeditious process for bringing this Application to a final conclusion. In my view, those important objects can be achieved by removing the individually named respondent. The applicant would not be prejudiced by the decision to remove the individually named respondent. The applicant’s right to a full hearing on the merits will not be affected as the individually named respondent can be called as witness. The full range of remedial orders will be available if the Application is successful.

ORDER

10The Tribunal orders that the individually named respondent be removed as a party to this proceeding and the title of proceeding is amended accordingly.