HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
R. B. as represented by his litigation guardian N. B.
Applicant
-and-
Durham District School Board
Respondent
INTERIM DECISION
Adjudicator: Jo-Anne Pickel
Indexed as: R. B. as represented by his litigation guardian N. B. v. Durham District School Board
WRITTEN SUBMISSIONS
Durham District School Board, Respondent
Elizabeth Winter, Counsel
1The applicant’s litigation guardian alleged that the respondent discriminated against the applicant because of race, age, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant’s litigation guardian named the principal of her son’s school as a personal respondent but she did not name the school board as a respondent. She raised three incidents of alleged discrimination in the Application. She alleged that the respondent failed to take appropriate action when one of the other students called the applicant racist epithets. She also alleged that the respondent discriminated against the applicant when it imposed a two day suspension on him and called the Children’s Aid Society to report concerns relating to the applicant and his family.
2The personal respondent and the Durham District School Board (the “school board”) filed a Response in which they requested that the Tribunal add the school board as a respondent and remove the personal respondent. They also requested that the Tribunal dismiss the first allegation listed above on the basis that it is untimely.
3The applicant’s litigation guardian did not file a Reply nor did she respond to these requests and the time for doing so has passed.
addition of the school board as a respondent
4When determining a request to add a respondent, the Tribunal considers the following three questions:
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?
See Smyth v. Toronto Police Services, 2009 HRTO 1513.
5Applying the factors set out above, I find that it is appropriate to add the school board as a respondent. The school board would normally be named as a respondent in a case such as this one as it is deemed liable under the Code for any actions taken by its employees in the course of their employment.
removal of personal respondent
6The respondent requested that the Tribunal remove Christopher Wilhelm as a personal respondent to the Application. Mr. Wilhelm was either the school principal or the acting school principal at the time of the incidents set out in the Application.
7The Tribunal has consistently cautioned against the unwarranted naming of personal respondents to Applications. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14, the Tribunal stated as follows at para. 42:
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.
8The Tribunal has generally considered the following factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove a personal respondent from a proceeding:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
9Applying the factors set out in Persaud, above, I find that the personal respondent should be removed from this Application. Based on the materials filed, I am satisfied that the personal respondent carried out the actions at issue in this case in the course of his employment with the school board. Therefore, under 46.3(1) of the Code, the school board is vicariously liable for any breaches of the Code arising from his conduct. I see no compelling reason to involve Mr. Wilhelm for the applicant to have a fair hearing of his case.
dismissal of untimely incident
10As noted above, the applicant’s litigation guardian listed three incidents in the Application. According to the respondent, the first incident involving one of the applicant’s classmates calling him racial epithets occurred in December 2014. The other two incidents occurred in October 2016. These time frames were not disputed by the applicant. The Application was filed on November 4, 2016. The respondent submitted that the first incident is untimely as it occurred almost two years before the Application was filed.
11Section 34 of the Code provides that an Application must be filed within one year of the incident to which the Application relates, or within one year of the last incident in a series of events. Subsection 34(2) allows for a filing of an Application outside of the time limit if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to the respondent. In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner.
12The first incident clearly took place more than a year before the Application was filed. There are only two ways in which this incident can be considered timely. First, the incident could be timely if it forms part of a “series of incidents” with the other two incidents outlined in the Application The Tribunal has found that there must be a thematic connection or nexus between incidents in order for them to be considered a “series of incidents” within the meaning of s. 34(1) of the Code. The Tribunal has found that a break of one year or more between incidents may interrupt or break a “series of incidents”. In this case, there was a break of almost 22 months between the December 2014 incident and the October 2016 incidents. Therefore, in my view, these incidents cannot reasonably be considered a series of incidents.
13Second, an incident that occurred more than a year before the Application was filed may be timely under s. 34(2) of the Code if an applicant provides a reasonable (“good faith”) explanation for their delay in filing their Application in regards to the incident. The applicant’s litigation guardian has not provided any reason for her delay in filing the Application in relation to the December 2014 incident. Therefore, there is no basis for finding this incident timely under s. 34(2) of the Code.
14For these reasons, the December 2014 incident must be dismissed as untimely.
orders
15The Tribunal orders as follows:
a. The Durham District School Board is added as a respondent to the Application and Christopher Wilhelm is removed as a personal respondent. The style of cause is amended accordingly.
b. The allegation contained in the Application involving one of the applicant’s classmates that occurred in or around December 2014 is dismissed as untimely.
c. The Tribunal will schedule a two day hearing of the Application and advise the parties of the date, time and location of the hearing by Notice of Hearing.
Dated at Toronto, this 15th day of August, 2017.
“Signed By”
Jo-Anne Pickel
Vice-chair