Human Rights Tribunal of Ontario
B E T W E E N:
Yasmin Mahmoud
Applicant
-and-
George Brown College, Zeenat Janmohamed, Resh Budhu and Robert Davis
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard Date: December 11, 2017 Citation: 2017 HRTO 1640 Indexed as: Mahmoud v. George Brown College
WRITTEN SUBMISSIONS
Yasmin Mahmoud, Applicant Fathima Cader, Counsel
George Brown College, Zeenat Janmohamed and Resh Budhu, Respondents Patty G. Murray, Counsel
Robert Davis, Respondent Self-Represented
1The purpose of this Interim Decision is to address the personal respondent Robert Davis’ two requests: to remove him as a party to the Application and to hold a summary hearing.
2The applicant filed an Application alleging discrimination with respect to goods, services and facilities because of race, colour, ancestry, place of origin, ethnic origin, creed and sex and because she was subjected to reprisal or threat of reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (“Code”). Specifically, the applicant alleged that in January 2016, she commenced the corporate respondent George Brown College’s (“the College”) International Placement course. The course included a requirement that students participate in a four-week placement in Cuba. On April 29, 2016, the applicant and six other students travelled to Cuba with Mr. Davis who held the role of instructor and International Placement Co-ordinator.
3The applicant maintains that over the course of the trip, Mr. Davis exhibited discriminatory behaviour against her on several occasions on the basis of her race, colour, ancestry, place of origin, creed and sex. In August 2016, the applicant filed a written complaint to the College about Mr. Davis.
4The College maintains that it investigated the complaint through an independent third party investigator and an investigation report was issued on September 26, 2016. The College submits that many of the allegations were substantiated and Mr. Davis’ employment was terminated.
Request to Remove the Personal Respondent Mr. Davis
5Mr. Davis has requested that the Tribunal remove him from the Application for the following reasons:
a. There is a corporate respondent, the College, which has been named and is alleged to be liable for the same conduct as Mr. Davis’ actions.
b. There is no issue raised as to the College’s deemed or vicarious liability for Mr. Davis’ actions. At all times relevant to the Application, Mr. Davis was acting in his role as an employee of the College.
c. There is no issue as to the ability of the College to respond to or remedy the allegations made in the Application.
d. There is no compelling reason to continue the proceeding against Mr. Davis, particularly given that the allegations against him relate to actions he took in the regular course of his employment during a work assignment and in his capacity as a teacher for the College;
e. No prejudice would be caused to the applicant or the College by removing Mr. Davis as a personal respondent.
6The applicant takes the position that the Tribunal ought to deny the request to remove Mr. Davis as a party to the Application. The applicant submits that the College has expressly refused vicarious liability for any or all of Mr. Davis’ conduct. In addition, the applicant maintains that Mr. Davis’ conduct included actions that occurred outside the regular course of his employment duties. The applicant notes that many of the allegations specifically target Mr. Davis’ actions and his actions are necessarily central to the Application. Finally the applicant maintains that she would be severely prejudiced by Mr. Davis’ removal as a party as it would limit her ability to fully address his specific actions and to access remedies from him.
7The College and other individual respondents dispute Mr. Davis’ assertion that he was acting in the course of his employment as Mr. Davis’ employment was terminated as a result of the findings of the investigation.
8Rule 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 (“Sigrist”), 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 [now section 46.3(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.
9The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5 (“Persaud”):
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:
Is there 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 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?
10In 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 Application.
11Applying the factors set out in Sigrist and Persaud, above, I find that Mr. Davis should not be removed as a personal respondent to the Application. Mr. Davis’ employment was terminated as a result of the findings of an investigation about his actions and the College has not accepted that it is deemed or vicariously liable for Mr. Davis’ actions. In addition, the applicant’s allegations are largely about Mr. Davis’ individual conduct, which is central to the Application, and the nature of the alleged conduct may make it appropriate to award a remedy specifically against Mr. Davis if an infringement is found. Finally, I find that the applicant would be prejudiced by Mr. Davis’ removal as a party.
12Therefore, Mr. Davis’ request to be removed as a party to the Application is denied
Request for Summary Hearing
13On October 25, 2017, Mr. Davis filed a Request for Summary Hearing arguing that all of the allegations against him relate to matters that occurred exclusively in Cuba and are outside the Tribunal’s territorial jurisdiction.
14The applicant takes the position that the Tribunal ought to dismiss the Request for Summary Hearing. She submits that the Application is within the Code’s territorial jurisdiction because the parties and matter have sufficient connections or have real and substantial connections to Ontario.
15The College and other personal respondents take no position on the Request for Summary Hearing.
16Under 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 about Mr. Davis may better be resolved after hearing evidence in a hearing on the merits. Summary hearings do not involve the hearing of any evidence. Therefore, Mr. Davis’ Request for Summary Hearing is denied.
Order
17For the above reasons, the Tribunal orders as follows:
a. Mr. Davis’ request to be removed as a personal respondent to the Application is denied.
b. Mr. Davis’ request for a summary hearing is denied.
18I am not seized of this matter.
Dated at Toronto, this 11th day of December, 2017.
“Signed by”
Josée Bouchard Vice-chair