HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
E.J.
Applicant
-and-
Toronto District School Board, Toronto Student Transportation Group and Stock Transportation
Respondents
A N D B E T W E E N:
C.J. by her litigation guardian E.J.
Applicant
-and-
Toronto District School Board, Toronto Student Transportation Group and Stock Transportation
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: E.J. v. Toronto District School Board
WRITTEN SUBMISSIONS
E.J. and C.J., as represented by her litigation guardian E.J., Applicants
Self-represented
Toronto District School Board, Respondent
Lauri Reesor, Counsel
Stock Transportation, Respondent
Petula Fera, Representative
1These Applications were expedited pursuant to my interim decision dated March 17, 2016 (2016 HRTO 345).
2By Registrar’s letter dated April 14, 2016, the Applications were consolidated.
3This Interim Decision addresses two Requests for Order During Proceedings (“RFOP”) filed by the applicant and the respondent Toronto District School Board (the “Board”). The applicant has filed a RFOP to add Stock Transportation as a respondent. Stock Transportation objects to being added as a party to this proceeding. The Board has filed a RFOP to remove Toronto Student Transportation Group (“TSTG”) as a respondent.
decision
Request to Add Stock Transportation
4The analysis applied by the Tribunal when dealing with requests to add or remove 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:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
5Having considered the factors in Smyth, I find it appropriate to add Stock Transportation.
6The applicants, C.J. and E.J., allege that they were discriminated against when the respondents and Stock Transportation refused to assist E.J. in attaching C.J.’s safety harness in the school bus. C.J. travels to school on a Stock Transportation bus. The applicants seek a remedial order requiring the bus driver, an employee of Stock Transportation, to help E.J. (C.J.’s mother) attach and detach C.J.’s safety harness.
7I find that it is appropriate to add Stock Transportation as a respondent since the allegations made, if proven by the applicants, would support a finding of discrimination against Stock Transportation.
Request to Remove TSTG
8The Board seeks the removal of TSTG because it asserts it is not an appropriate party. The Board submits the applicants are members of the Board’s school community and as such, the Board is responsible for the transportation of its students. The Board submits further that TSTG is an unincorporated association and has no legal status beyond its members. TSTG is composed of and operated by 15 Board employees and 12 Toronto Catholic District School Board (“TCDSB”) employees.
9The applicants oppose the removal of TSTG. They submit the lines of accountability between the Board and TSTG are not clear. The applicants state TSTG’s Operations and Safety Manager played a central role in the events surrounding C.J.’s transportation issues. In addition, TSTG will be the entity implementing an accommodation plan that the applicants seek, if successful in their Application. The applicants submit TSTG should be included because of its expertise in transportation issues and the various forms of restraint on school buses.
10The Board relies on the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, in support of its request to remove TSTG. Those factors apply to the removal of personal respondents, typically employees, when a corporate or organizational respondent is named as a respondent. They are less relevant in a case involving the removing of a separate entity.
11The Board submits that it is unnecessary for TSTG to be a party because it is vicariously liable for its conduct. In the absence of hearing evidence concerning the operations of TSTG and the individuals who work for it, including the individuals who interacted with the applicants, I do not think I can assume, based solely on the submissions of counsel, that the Board is vicariously liable for TSTG.
12The Board submits further that TSTG should be removed because its inclusion may act as a roadblock to resolution, as the involvement of TSTG necessarily includes an unrelated school board, the TCDSB, which has had no involvement in the allegations. In my view, the absence of TSTG may make resolution more difficult because the key entity involved in the transportation of students would not be part of the settlement discussions.
13In my view, it is not appropriate to remove TSTG. TSTG is a separate entity from the Board. It is the entity that, at the very least, coordinates the Board’s bussing needs. In the event the Application is successful, a specific order may be required against the TSTG regarding the accommodation of the applicants. The fact that TSTG is an unincorporated association is not a reason to find that it should not be a respondent. See Lee v. Ottawa (City), 2009 HRTO 2153 at para. 8.
ORDER
14The applicant’s request to add Stock Transportation is granted. The style of cause has been amended accordingly. A Response from Stock Transportation is due within 35 days of the date of this Interim Decision.
15The Board’s request to remove TSTG is denied. A Response from TSTG is due within 35 days of the date of this Interim Decision.
16Within 7 days of the date of this Interim Decision, Stock Transportation and TSTG are to advise the Tribunal whether they consent to mediate this matter.
Dated at Toronto, this 22nd day of April, 2016.
“Signed by”
Jennifer Scott
Vice-chair