Bedawi v. The Algonquin College of Applied Arts and Technology, 2017 HRTO 1338

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Walaa Bedawi

Applicant

-and-

The Algonquin College of Applied Arts and Technology and George Cole

Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: October 11, 2017

Citation: 2017 HRTO 1338

Indexed as: Bedawi v. The Algonquin College of Applied Arts and Technology

WRITTEN SUBMISSIONS

Walaa Bedawi, Applicant

Self-represented

The Algonquin College of Applied Arts and Technology, Cynthia Poulin, Amandah Selvey, Reuben Helder, Louise Cowley, and Marjan Ghannad, Respondents

Chris Rutherford, Counsel

George Cole, Respondent

Raj Anand, Counsel

Introduction

1The purpose of this Interim Decision is to deal with a request to remove several individual respondents to the Application, and a request for a summary hearing with respect to the Application against one individual respondent.

BACKGROUND

2On January 13, 2017, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her with respect to services because of her race, colour, ancestry, place of origin, ethnic origin, disability, and family status, and subjected her to reprisal.

3On April 4, 2017, the organization respondent, The Algonquin College of Applied Arts and Technology, and the individual respondents, Cynthia Poulin, Amandah Selvey, Reuben Helder, Louise Cowley, and Marjan Ghannad, filed a joint Response, which denied the allegations of discrimination and reprisal.

4On April 4, 2017, the individual respondent, George Cole, filed a separate Response, which denied the allegations of discrimination and reprisal. He also filed a Request for Summary Hearing with respect to the Application against him.

5On June 30, 2017, the organization respondent, The Algonquin College of Applied Arts and Technology, and the individual respondents, Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad, filed a joint Request for an Order During Proceedings (“RFOP”) to remove Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application.

6On July 10, 2017, the applicant filed a Response to the RFOP, which opposed removing Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application, but did not specifically explain why each of them should remain as individual respondents.

7On July 12, 2017, the individual respondent, Mr. Cole, filed a Response to the RFOP, which consented to removing Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application.

REQUEST TO REMOVE INDIVIDUAL RESPONDENTS TO THE APPLICATION

8I will deal first with the request to remove Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application.

9Rule 1.7(b) of the Tribunal’s Rules of Procedure provides that the Tribunal may remove a party. In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14, the Tribunal set out the general principles that apply to this issue 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.

10In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal further expanded on these principles 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:

a) Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?

b) 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?

c) Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?

d) 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?

e) 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.

11In my view, Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad should be removed as individual respondents to the Application. There is an organization respondent (The Algonquin College of Applied Arts and Technology) in the proceeding that is alleged to be liable for the same alleged conduct as them, no issue has been raised as to the organization respondent’s deemed or vicarious liability for their alleged conduct, and there is no issue as to the ability of the organization respondent to respond to or remedy any infringements of Code.

12In addition, in her Response to the RFOP, the applicant did not identify any prejudice that would be caused to her as a result of removing Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application.

13Furthermore, the applicant has not identified a compelling reason to continue the proceeding against Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad. The narrative of the Application is difficult to follow, but her main allegations appear to relate to the process and decisions with respect to her requests for accommodation of her disability and family status-related needs in courses that she was taking at The Algonquin College of Applied Arts and Technology. She also alleged that Ms. Poulin asked her discriminatory questions related to her race and place of origin, but she did not specify what those questions were, or explain why they were discriminatory. Her Response to the RFOP also failed to explain with any specificity why Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad should remain as individual respondents.

14In the circumstances, I find that it is not necessary to involve Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application.

15Accordingly, the request to remove Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application is granted. The title of proceeding is amended accordingly.

REQUEST FOR SUMMARY HEARING

16I will deal next with the request for a summary hearing with respect to the Application against the individual respondent, Mr. Cole.

17The request is granted. The Tribunal directs that a summary hearing be held to address to determine whether the Application against Mr. Cole should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application against him will succeed.

18Rules 19A.1 and 19A.2 of the Tribunal’s Rules read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

19Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

20The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application against Mr. Cole should not be dismissed as having no reasonable prospect of success.

21If the Tribunal determines that the Application against Mr. Cole has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application against Mr. Cole should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application against Mr. Cole may be dismissed in whole or in part.

22A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases which they intend to rely upon no later than 14 days prior to the teleconference.

23The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at http://www.sjto.gov.on.ca/hrto, and the Tribunal’s case law at http://www.canlii.org/en/on/onhrt/index.html.

ORDER

24The Tribunal makes the following orders:

1. The request to remove Ms. Poulin, Ms. Selvey, Mr. Helder, Ms. Cowley, and Ms. Ghannad as individual respondents to the Application is granted. The title of proceeding is amended accordingly.

2. The request for a summary hearing with respect to the Application against the individual respondent, Mr. Cole, is granted. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases which they intend to rely upon no later than 14 days prior to the teleconference.

25I am not seized of this matter.