HUMAN RIGHTS TRIBUNAL OF ONTARIO
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B E T W E E N:
Gabriel Landry
Applicant
-and-
Ontario Provincial Police, Darren Miller and Jeff Dagg
Respondents
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INTERIM DECISION
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Adjudicator: Naomi Overend
Indexed as: Landry v. Ontario Provincial Police
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WRITTEN SUBMISSIONS
Ontario Provincial Police, Darren Miller, Rob Shillinglaw and Jeff Dagg., Respondents
Indira Sawh, Counsel
Introduction
1This Application alleges discrimination on the basis of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A hearing in this matter is scheduled for April 25 and 26, 2016 in Toronto.
2On February 11, 2016, the respondents brought a Request for an Order During Proceedings (“Request”) to remove the named individual respondents. The respondents brought a second Request on March 17, 2016 for an order requiring the applicant to provide the name of his witness, currently identified as “John Doe,” and a full willsay for this individual. The applicant has not filed a Response to either Request and the time for doing so has since elapsed.
Decision and Analysis
Removal of Individual Respondents
1Rule 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.
2The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, the relevant portions of which are attached:
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:
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?
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.
3The applicant names three individual respondents in his Application, who were all police officers who were in some way associated with the investigation of his allegations of sexual assault. He does not specify in his Application on what basis they were named, but a review of the material filed in this matter reveal that two, Darren Miller and Jeff Dagg, were active members of the investigation team. Until the Tribunal hears the evidence in the upcoming hearing, it will not be clear to what extent, if any, their personal conduct is a necessary part of the applicant’s case.
3However, the respondents assert, and the applicant does not refute, that Rob Shillinglaw’s role was to assist the lead investigator by taking backup notes and monitoring a statement made by the applicant when he made his initial allegation to the OPP. The respondents further assert:
Provincial Constable Shillinglaw was not in the same room as Mr. Landry at the time but was monitoring from another room with the electronic devices such as a television monitor. His role was to ensure that if there was a malfunction in the video recording equipment his notes would serve as a backup.
4In light of this, I find that PC Shillinglaw’s conduct is not central to this case and that it is not appropriate to have him named as a respondent to this proceeding. Indeed, it is not clear whether PC Shillinglaw’s testimony is required, although I leave that to the respondents to determine.
Disclosure of Witness Name and Anticipated Testimony
5The Tribunal’s Rules of Procedure require the parties to identify their witnesses and provide a summary of each witness’ anticipated testimony. The applicant must provide this to the respondents’ counsel by April 14, 2016 or he will not be permitted to call the witness identified as “John Doe.”
Order
6I make the following orders:
a. The respondents’ request that the Tribunal remove Rob Shillinglaw as a respondent to this Application is granted and the style of cause amended accordingly;
b. The respondents’ request that the Tribunal remove the remaining two individual respondents is denied; and
c. The respondents’ request for disclosure of the identity and willsay statement of the applicant’s witness, identified as “John Doe,” is granted. The applicant must provide this information to the respondents’ counsel by April 14, 2016.
Dated at Toronto, this 7th day of April, 2016.
“Signed By”
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Naomi Overend
Vice-chair