AK v. Peel District School Board, 2016 HRTO 799

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

AK

Applicant

-and-

Peel District School Board

Respondent

INTERIM DECISION

Adjudicator: Jay Sengupta

Date: June 13, 2016

Citation: 2016 HRTO 799

Indexed as: AK v. Peel District School Board

APPEARANCES

AK, Applicant

Self-represented

Peel District School Board, Respondent

Roy C. Filion and Giovanna Di Sauro, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on July 30, 2015. Two mediation sessions were conducted on November 13, 2015 and January 11, 2016.

2As the mediations did not result in a settlement, the Application will now proceed to a hearing on the merits.

3On October 4, 2015, the applicant filed a Request for Order During Proceedings (an “RFOP”) seeking to amend her Application to add information. In addition, in between the two mediation sessions and immediately following the second mediation session on December 14, 2016 and January 12, 2016, the applicant filed additional RFOPs seeking, again, to amend her Application and also seeking an order for production of documents.

4The respondents oppose the orders sought by the applicant and seek to have the personal respondents removed as parties. The applicant opposes the respondents’ request and wishes to have the personal respondents remain as parties to the Application.

5A case management teleconference was convened to seek clarification from the applicant as to what she was seeking in the various RFOPs and to provide the parties an opportunity to make any additional submissions on the issues raised by the RFOPs.

6This Interim Decision addresses the following issues:

a. Request by the applicant to have her name anonymized;

b. Request by the applicant to have the hearing expedited;

c. Request by the respondents for removal of personal respondents;

d. Request by the applicant to amend her Application; and

e. Request by the applicant for production of documents.

decision

Anonymization

7The applicant has made a request for anonymization. During the conference call, the respondents provided their consent to the request. Accordingly, the request for anonymization is granted and the applicant will be referred to by the initials “AK”.

Request to Expedite

8The Tribunal’s Rules of Procedure provide for Applications to be dealt with in an expedited manner in urgent circumstances. Rule 21.1 provides that an applicant may request that the Tribunal deal with an application on an expedited basis in circumstances which require an urgent resolution of the issues in dispute. Rule 21.2 requires an applicant seeking an expedited application to identify any urgent circumstances that may affect the fair and just resolution of the merits of the application and the harm that would result if the request is denied.

9In Weerawardane v. 2152458 Ontario Ltd., 2008 HRTO 53, at para. 9, the Tribunal held that, for a request to expedite to be granted, the applicant must demonstrate that the circumstances are truly urgent, requiring the resolution of the human rights dispute in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

10In Ebrahimi v. Durham District School Board, 2009 HRTO 1062, the Tribunal noted that another basis for expediting an application may be where a requested (and arguably appropriate) remedy will be moot, or unavailable, without expediting an application.

11Having reviewed the applicant’s requests to expedite, her oral submissions during the teleconference and the two additional packages of unsolicited written materials she submitted after the teleconference, including the report from her psychologist, I cannot conclude that this Request to Expedite meets the high threshold required by the Tribunal’s jurisprudence.

12During the conference call, the applicant acknowledged that granting her various requests to amend the Application would require the filing of additional amended Responses and Replies, which would, by necessity, delay the resolution of this matter. In her written materials she has gone further. She has actually indicated that if forced to choose, she would rather the amendment requests be granted rather than the request for an expeditious hearing.

13In support of her request, the applicant cites the continuing psychological strain she is under and the prospect of her mental health conditions deteriorating further if a request to expedite is not granted.

14She has submitted a letter from her psychologist, dated April 4, 2016 in the package of materials sent most recently.

15While the letter, along with the reports from emergency treatment facilities and police contact reports, confirms that the applicant is experiencing psychological illness and associated symptoms for which she is receiving treatment and that she would benefit from a resolution of her workplace dispute, the medical and other information does not persuade me that the applicant’s circumstances are such that they warrant resolution in a particularly rapid manner as compared with the time required to complete the Tribunal’s regular process.

16The letter focuses primarily on the applicant’s concern regarding the proposed return to work discussions and her opposition to a transfer to a different school location. It confirms that the applicant does not report active current suicidal ideation but that she reports her mental health may deteriorate if forced to work at a different location. In short, it speaks more to the substance of the resolution that the applicant seeks in this dispute, rather than urgency in achieving that resolution or the unavailability of that remedy should the matter take its usual course.

17The applicant has not identified truly urgent circumstances that might prevent the “fair and just resolution” of her Application on the merits if the proceedings are not expedited or that the remedies she seeks would be unavailable or moot should the request be denied.

18Accordingly, the Request to Expedite is denied.

Removal of Personal Respondents

19Rule 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.

20The 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.

21The respondents submit that the personal respondents should be removed because the conduct alleged by the personal respondents was carried out in the course of their duties as employees of the organizational respondent; and the organizational respondent concedes that it is liable for the conduct of its employees that may be found to violate the Code.

22The applicant opposes the request and indicates that the personal actions of the personal respondents constitute infringements of her rights under the Code and that she intends to seek additional remedies from them personally.

23The personal respondents are all employed by the organizational respondent and, from my review of the materials filed to date, acting within the scope of their employment. There is an organizational respondent that is also alleged to be responsible for the conduct and there is no issue raised as to the organizational respondent’s deemed or vicarious liability for the alleged conduct, nor is there an issue as to its ability to respond to or remedy the conduct and no prejudice to any party caused by their removal as personal respondents. There is no compelling reason to continue the proceeding against them.

24Applying the Persaud factors set out above, I find that the personal respondents should be removed as respondents in this Application and the style of cause amended accordingly.

Request to Amend Application

25As indicated above, the applicant has filed numerous requests to amend her Application. Specifically, she filed requests on October 4, 2015, December 14, 2015 and January 12, 2016. The final request, filed on January 12, 2016 replaces the previous ones and is the one addressed in this Interim Decision.

26Rule 1.7 (c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

27In determining whether requests to amend Applications will be granted, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend and the prejudice to the respondent. See Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

28Having reviewed the various requests and the submissions made by the parties in respect of those requests, the Tribunal grants, in part, the applicant’s final request to amend her Application, dated January 12, 2016. I note that request included a request for production of documents, which is addressed later in this decision.

29As the parties acknowledged, in the circumstances, granting this amendment would be a more efficient way to proceed with the resolution of this dispute between the parties, rather than the alternative, which would see the applicant filing another separate Application.

30The proposed amendments contained in the final request to amend, dated January 12, 2016, including those that relate to the applicant’s allegations that post-date the filing of the original Application on July 30, 2015, up to and including events that ended with the request filed on January 12, 2016 are granted with the following exceptions.

31All allegations relating to the actions or inactions of counsel during the course of these proceedings and all references to discussions held during the course of the mediation sessions held on November 13, 2015 and January 11, 2016 and written communications made in furtherance of settlement are struck from the amended Application.

32If the respondent wishes to file an amended Response, it is directed to do so within 35 days of the date of this Interim Decision. The applicant will then have a further 14 days to file an amended Reply.

Request for Production of Documents

33The applicant’s request for production of documents is denied as premature.

ORDER

34The Tribunal makes the following order with respect to the issues raised by the parties and considered during the teleconference hearing:

1. The applicant’s request for anonymization is granted. She shall be referred to as “AK”.

2. The applicant’s request to expedite is denied.

3. The respondents’ request to remove the personal respondents to this Application is granted. The style of cause amended accordingly.

4. The applicant’s final request, dated January 12, 2016, to amend her Application is granted in part. If the respondent wishes to file an amended Response, it is directed to do so within 35 days of the date of this Interim Decision. The applicant will then have a further 14 days to file an amended Reply.

5. The applicant’s request for production of documents is denied as premature

35I am not seized.