Shawn Amankwah v. Toronto Transit Commission and Jason Barber, 2016 HRTO 989

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shawn Amankwah Applicant

-and-

Toronto Transit Commission and Jason Barber Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: July 27, 2016 Citation: 2016 HRTO 989 Indexed as: Amankwah v. Toronto Transit Commission

WRITTEN SUBMISSIONS

Shawn Amankwah, Applicant Self-represented

Toronto Transit Commission and Jason Barber, Respondents Patricia Matusiak, Counsel

1By Application filed on December 18, 2015, the applicant alleged that he was discriminated against because of his race, colour, sex and age contrary to the Human Rights Code, R.S.O. 1990, c. H.19. Specifically, the applicant alleged that the respondents discriminated against him when the personal respondent allegedly used excessive force, detained the applicant and issued him ticket for causing a disturbance on December 23, 2014.

2The applicant identifies as an African-Canadian male and he is in his late twenties. He was involved in an altercation with a white man after boarding a Toronto Transit Commission (“TTC”) subway train. According to the applicant, the personal respondent used excessive force against him while taking no action against the white man who was involved in the altercation. The respondents submit that the personal respondent used an appropriate amount of force and direction. They state that the personal respondent was properly charged because he admitted to hitting the other person involved in the altercation, incited the crowd at the TTC station and resisted arrest.

3The respondents issued a ticket to the applicant for causing a disturbance on TTC property contrary to a TTC By-law. The applicant was sent a Notice of Trial in the Ontario Court of Justice (“OCJ”). He did not attend the trial and was convicted in absentia (despite his absence). The applicant claims that he did not receive the Notice of Trial as he was living at a different address at the time.

4In their Response, the respondents requested that the Tribunal hold a summary hearing to determine whether the Application should be dismissed as an abuse of process and/or on the basis that it lacks a reasonable prospect of success. In the alternative, the respondents submit that it would be an abuse of process for the applicant to challenge the findings of fact made by the OCJ. Lastly, the respondents request that the Tribunal remove the personal respondent from the Application if it is not dismissed at this stage.

request to dismiss as Abuse of process

5Although the respondents have framed their request to dismiss using the doctrine of abuse of process, I address their submissions using the analysis consistently applied by the Tribunal under s. 45.1 of the Code. This provision is the statutory reflection of the collective principles underlying the common law doctrines of abuse of process, collateral attack, and issue estoppel. These doctrines are used by the common law to deliver to the litigation process principles of finality, the avoidance of multiplicity of proceedings, and protection for the integrity of the administration of justice, all in the name of fairness. See British Columbia (Workers' Compensation Board) v. Figliola, 2011 SCC 52 (“Figliola”) at paras. 24-25.

6Section 45.1 of the Code states:

The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

7Section 45.1 requires a two-part analysis: (1) whether there was another “proceeding” and, if so, (2) whether it “appropriately dealt with the substance of the Application”.

8There is no question that a OCJ trial is a “proceeding” within the meaning of s. 45.1 of the Code. As a result, the only remaining issue is whether the substance of the Application was appropriately dealt with in the OCJ proceeding or whether it would be an abuse of process to permit this Application to continue.

9In my view, the Application should not be dismissed on under s. 45.1 of the Code or as an abuse of process. The OCJ proceeding did not deal with the applicant’s discrimination allegations and therefore it did not deal with the substance of his Application. As a result, it would not be appropriate to dismiss the Application because of the OCJ proceeding.

10As noted above, the respondents’ submitted that it would be an abuse of process to challenge the findings of fact made in the OCJ trial. In my view, the adjudicator assigned to decide this case on its merits will be best placed to determine this issue.

request for summary hearing on issue of no reasonable prospect of success

11Under Rule 19A.5 of the Tribunal’s Rules of Procedure, the Tribunal need not give reasons for a decision to hold or not to hold a summary hearing. In the circumstances of this case, the applicant has alleged that he was treated more harshly than the white person with whom he was involved in an altercation. The Tribunal will require evidence in a hearing on the merits before determining this Application.

request to remove personal respondent

12Rule 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.

13The 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?

14Applying the Persaud factors set out above, I find that it would not be appropriate to remove the personal respondent as a party to the proceeding in the circumstances of this case. Among other things, the applicant alleges that the personal respondent treated him differently and more harshly due to his being an African-Canadian man in his late twenties. This alleged conduct on the part of the personal respondent is a central issue in this case. I appreciate that the parties have different versions of the facts of this dispute. At this stage, my assessment as to whether the personal respondent should be removed as a party is based on whether the allegations raised by the applicant, assuming them to be true, provide a compelling reason for him to continue as a party to the Application. In my view, they do.

15I find that there is a sufficient basis to maintain the personal respondent as a party to this proceeding. In my view, the nature of the personal respondent’s alleged conduct, if proven, could make it appropriate to award a remedy specifically against him if an infringement is found. As a result, the respondents’ request to remove the personal respondent as a party to the Application is denied.

style of cause

16In his Application, the applicant identified the corporate respondent as the TTC Transit Enforcement Unit. The Transit Enforcement Unit is a unit of the TTC. The style of cause has been amended to correctly identify the corporate respondent as the Toronto Transit Commission.

Order

17For the reasons set out above, the Tribunal orders as follows:

a. The respondents’ request to dismiss the Application as an abuse of process is denied.

b. The respondents’ request for a summary hearing is denied.

c. The respondents’ request to remove the personal respondent is denied.

d. The style of cause is amended to identify the corporate respondent as the Toronto Transit Commission

18I am not seized of this matter.