S.G. v. Waterloo Cooperative Preschool Inc., 2017 HRTO 1011

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.G. as represented by her Litigation Guardian C.L. Applicant

-and-

Waterloo Cooperative Preschool Inc. Respondent

C.L. Applicant

-and-

Waterloo Cooperative Preschool Inc. Respondent

INTERIM DECISION

Adjudicator: Josée Bouchard Date: August 4, 2017 Citation: 2017 HRTO 1011 Indexed as: S.G. as represented by her Litigation Guardian C.L. v. Waterloo Cooperative Preschool Inc.

WRITTEN SUBMISSIONS

S.G. as represented by her Litigation Guardian C.L. and C.L., Applicants Self-represented

Waterloo Cooperative Preschool Inc., Erin Michalski, Candace Rozek, Cindy Endicott and Tracey Marques, Respondents Melanie Reist, Counsel

1The claimant S.G., as represented by her Litigation Guardian C.L., filed Application 2016-25376-I on September 20, 2016 under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to goods, services and facilities because of disability. The hearing is scheduled for September 19 and 20, 2017.

2The applicant C.L. filed Application 2016-25863-I on August 30, 2016 under the Code, alleging discrimination with respect to employment and membership in a vocational association because of race, colour, ethnic origin, association with a person identified by a ground listed under the Code and reprisal or threat of reprisal. The hearing is scheduled for September 11 and 12, 2017.

3On May 3, 2017, the respondents filed a Request for an Order During Proceedings for each Application requesting the removal of the personal respondents Erin Michalski, Candace Rozek, Cindy Endicott and Tracey Marques as parties to the proceedings. The respondents also filed a Request for Summary Hearing.

4On May 31, 2017, the applicant filed a Request for an Order During Proceedings for each Application requesting that the Applications be consolidated, that they be deferred, that the hearing be adjourned until November 2018 and that the information that could identify the minor be anonymized.

5On June 12, 2017, the respondents filed a Response to a Request for an Order for each Application consenting to the consolidation of the Applications and to the request to adjourn but requesting that the Tribunal deal with their requests for summary hearing and for the removal of the personal respondents before rescheduling the hearing on the merits.

6On June 25, 2017, the applicant filed submissions opposing the removal of the personal respondents and indicating that, because of the outcome of a motor vehicle collision, she will be unable to participate in the Tribunal's proceeding until at least October 2018.

7On June 30, 2017 the respondents filed submissions maintaining that it is reasonable to schedule a conference call to address the respondents' requests. They submit that scheduling such call to address preliminary matters is not in conflict with the applicant's medical reports, as she would not be required to travel to Toronto for any extended hearing dates.

8On July 3, 2017, the applicant filed written submissions submitting that she is unable to participate in the Tribunal's proceeding, including a conference call, and the medical documentation suggests that she will be unable to participate until November 2018.

9I find that a conference call is unnecessary to address the respondents' request for summary hearing and request to remove the personal respondents.

10This Interim Decision addresses the following:

a. The requests for consolidation; b. The requests for anonymization; c. The requests to adjourn; d. The request for summary hearing; and e. The request to remove the personal respondents.

Request for consolidation

11Rule 1.7(d) of the Tribunal's Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

12In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which sets out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

a. The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results; b. The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and c. Whether there are common issues of fact or law.

13The parties agree to the consolidation of the Applications. These are Applications involving alleged discrimination against a mother and her daughter that involve the same respondents, the same subject matter and alleged discrimination that arises largely out of the same set of facts. There is a compelling public interest in avoiding a multiplicity of proceedings and, accordingly, Applications 2016-25376-I and 2016-25863-I are consolidated.

Requests for anonymization

14The claimant, S.G., is a minor, and the applicant C.L. is the child's parent and Litigation Guardian in Application 2016-25376.I. The allegations in the Applications are that the claimant, S.G., was discriminated because of her disability. The respondents do not oppose the request for anonymization.

15Rule 3.11.1 of the Tribunal's Rules of Procedure ("the Rules") states:

Unless otherwise ordered, the Tribunal will use initials in its decisions to identify children under age 18 and the next friend of children under 18. It may use initials to identify other participants in the proceeding if necessary to protect the identity of children.

16In C.M. v. York Region District School Board, 2009 HRTO 735 ("C.M."), the Tribunal found that the considerations of potential stigma to the minor applicant, the fact that the minor applicant has no decision-making power in the proceedings and the special importance of protecting children or minors in the legal system justified the anonymization of the minor applicant's name in the Tribunal's decisions. This is also true in the present Application, particularly in light of Rule 3.11.1. In my view, the protection of the child's identity based on the considerations set out in C.M. outweighs the important principle of open justice.

17On the basis of the material before me, the Tribunal grants the applicants' requests for anonymization. The Tribunal's communications to the parties from this point forward, and any decisions in these cases, will use initials in place of the names of the claimant S.G. and the applicant C.L.

The requests to adjourn

18The applicant's request to adjourn relies on her and the claimant's medical condition following a motor vehicle collision on October 20, 2016 in which they sustained significant injuries. The applicant filed medical documentation in support of the request to adjourn the hearing and its proceeding until November 2018.

19The respondents do not oppose the request.

20The Tribunal's Practice Direction on requests to adjourn or reschedule hearings makes clear that the Tribunal will only grant adjournments in exceptional circumstances. It states:

The Tribunal discourages requests for adjournments outside the 14-day period to request rescheduling of a mediation or hearing, described above. Requests for adjournments, particularly at the last minute, are a significant impediment to fair and timely access to justice. Therefore, the Tribunal will only grant adjournments in extraordinary circumstances such as illness of a party, witness or representative. Absent exceptional circumstances, the Tribunal will not grant adjournments, even when all parties consent.

21The claimant and applicant's medical condition, as detailed in the medical documents, would make it very difficult for them to fairly participate in the hearing process. I find that this situation presents exceptional circumstances.

22For these reasons, I grant the applicant's adjournment request.

The request for summary hearing

23Under 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, I will simply note that the issues raised by the applicant and respondents may only be resolved after hearing evidence in a hearing on the merits. The Tribunal's summary hearing process is used to deal with those applications where the allegations may be legally insufficient to constitute a case to be answered. That is not the case here. Summary hearings do not involve the hearing of any evidence. In order to address the respondents' refutation of the applicants' allegations, a hearing on the merits must be held. Therefore, the respondents' Request for Summary Hearing is denied.

The request to remove the personal respondents

24The corporate respondent, Waterloo Cooperative Preschool Inc., is a not-for-profit cooperative preschool that is operated and managed by its members who consist of parents or guardians of the children registered with the preschool.

25The personal respondent Ms. Michalski has been a parent member and Board member of the corporate respondent's since September 2013 serving as School Improvements Officer.

26The personal respondent Ms. Rozek was a parent member of the corporate respondent's from July 2011 to June, 2013 where she served as Secretary on the Board from July 2012 to June 2013. She became a parent member again and Vice-President in July 2015.

27The personal respondent, Ms. Endicott, has been a parent member of the corporate respondent's since July 2014. She has been a Board member and Treasurer since April 2015.

28The personal respondent Ms. Marques is employed by the corporate respondent as a Supervising Teacher.

29The respondents maintain that it is unnecessary to include the personal respondents as parties to this Application in order to ensure a fair, just, and expeditious resolution to this matter. They argue that the applicant has pled no material facts to suggest that any of the personal respondents have engaged in any conduct that would fall outside the normal course of their employment or duties as employees, officers or directors, or which could constitute a violation of the Code.

30The respondents submit that the corporate respondent has been named as a party to the proceedings. It is able to take full responsibility for the alleged improper conduct against the personal respondents. In the circumstances, there is no personal liability which could attach to any of the personal respondents. There is no issue with the corporate respondent's alleged deemed liability for the personal respondents or with the ability of the corporate respondent to respond to or otherwise remedy the alleged infringement if the Application is successful. There is no prejudice to any party in the event that the personal respondents are removed as parties.

31Rule 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.

32The 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.

33I find that the corporate respondent has accepted that it is deemed or vicariously liable for the actions of the personal respondents and the personal respondents were acting within the course of their employment or duties as employees, officers or directors. In addition, the corporate respondent is able to satisfy the remedies sought. Finally the applicant has not demonstrated that she would be prejudiced by the removal of the personal respondents.

34In my view, considering all the circumstances, it is not necessary to involve as personal respondents Erin Michalski, Candace Rozek, Cindy Endicott and Tracey Marques in order to have a fair, just and expeditious resolution of the merits of the Application.

Order

35For the reasons set out above, the Tribunal orders as follows:

a. Applications 2016-25376-I and 2016-25863-I are consolidated. b. The Tribunal's communications to the parties from this point forward, and any decisions in these cases, will use initials in place of the names of the claimant S.G. and the applicant C.L. c. The applicant's request to adjourn is granted and the Tribunal will schedule a two day hearing on or after until November 2018. d. The respondents' request for summary hearing is denied. e. The respondents' request to remove Erin Michalski, Candace Rozek, Cindy Endicott and Tracey Marques is granted. f. The style of cause is amended accordingly.

Dated at Toronto, this 4th day of August, 2017.

"Signed By"

Josée Bouchard Vice-chair