Anna Di Carlo v. Dufferin-Peel Catholic District School Board, 2017 HRTO 959

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Di Carlo Applicant

-and-

Dufferin-Peel Catholic District School Board, Shawn Xaviour, Selina Galvao, John Kostoff and Denise Oude-Reimerink Respondents

AND B E T W E E N:

Anna Di Carlo Applicant

-and-

Dufferin-Peel Catholic District School Board, Shawn Xaviour, Selina Galvao, John Kostoff and Denise Oude-Reimerink Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren Date: July 28, 2017 Citation: 2017 HRTO 959 Indexed as: Di Carlo v. Dufferin-Peel Catholic District School Board

WRITTEN SUBMISSIONS

Anna Di Carlo, Applicant Self-represented

Dufferin-Peel Catholic District School Board, Shawn Xaviour, Selina Galvao, John Kostoff and Denise Oude-Reimerink, Respondents Wendy Lopez, Counsel

Introduction

1The applicant has filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), two separate Applications, 2016-26237-I and 2016-26247-I, against the same respondents.

2The respondents have made a Request that the two Applications be consolidated and heard together; that the Applications be dismissed as the Tribunal does not have jurisdiction to hear Applications that were filed more than one year after the date of the last alleged incident of a Code breach; and to remove the personal respondents.

3The applicant has not filed a Response to the respondents’ Request and the time to do so has now passed.

CONSOLIDATION

4Rule 1.7(d) of the Tribunal’s Rules of Procedure state 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.

5In 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 set 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.

6Applying these factors, I find that the two Applications identified above should be consolidated. The parties are the same. There is a factual overlap between the two Applications. The applicant has not raised any issue with respect to prejudice. Consolidating the Applications will relieve the parties and their witnesses from having to attend two separate hearings. For these reasons, the Applications will be consolidated and heard together.

DELAY

7Sections 34(1) and (2) of the Code state:

34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

8Section 34(1) is a mandatory limitation period established under the Code. When an application contains a number of allegations that span a period of time, the Tribunal must consider whether the allegations form a “series of incidents”. In Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 30 (“Garrie”), the Tribunal held that the following factors are relevant to a determination of whether the allegations form part of a “series of incidents”:

a. What is the last alleged incident of discrimination to which the Application relates?

b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?

c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?

d. What is the temporal gap between alleged incidents of discrimination?

9The Tribunal has held in numerous decisions that if an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegations was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.

10The Tribunal will hold a preliminary hearing to determine if all or part of these Applications should be dismissed. If the Tribunal determines that the Applications or parts of them are outside its jurisdiction because of delay, these Applications will be dismissed in whole or in part.

REMOVAL OF THE INDIVIDUAL RESPONDENTS

11In Sigrist and Carson v. London District Catholic School Board et al, 2008 HRTO 14 at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

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.

12The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

13During the teleconference hearing, the parties should be prepared to address these factors in their submissions on whether the individual respondents should be removed.

NEXT STEPS AND DIRECTIONS

14The Registrar will schedule a half-day preliminary/summary hearing by conference call. The parties will receive a notice of hearing, setting out the time, date and telephone numbers for the hearing. Although scheduled for a half-day, not all preliminary hearings require a half-day to complete. It will be up to the Vice-chair to determine the length of the hearing and how the hearing is conducted.

15The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests available on the Tribunal’s website at www.hrto.ca

16The parties shall deliver to each other and file with the Tribunal copies of any further documents, or cases they intend to rely upon for the hearing no later than 14 days prior to the date of the conference call. If any party intends to call witnesses for the hearing, a summary of the witness’ intended evidence together with an explanation for the need of the witness’ evidence must also be delivered and filed.

17I am not seized.