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Focus: Naming the Right Respondent at the HRTO

Identifying the appropriate respondent is an important step in filing an application at the Human Rights Tribunal of Ontario (HRTO). Simply put, the respondent is the person or persons legally responsible for the alleged discriminatory acts.  For the majority of cases, identifying the respondent is relatively simple. For example, the proper respondent is the employer that terminated the applicant’s employment in a  discriminatory manner or the educational institution that failed to accommodate the applicant.

However, for some cases the question of who is legally responsible requires a more complicated and thorough analysis. This complication often arises in applications alleging discrimination on the basis of disability or failure to accommodate where there may be more than one controlling individual or organization. Often these individuals or organizations may try to point to other parties as being responsible for the alleged action or omission, or that another party set standards or rules that prevented them from complying with Ontario’s Human Rights Code (the “Code”). In these fact scenarios, it is not uncommon that the applicant may find it difficult to properly identify the appropriate respondent(s) at the outset of the application.

This post will cover some of the factors to consider when deciding who to name as respondents and the legal test for adding respondents later in the proceedings. It will also review specific challenges of naming the proper respondents as it relates to education related applications.

The Importance of Naming the Proper Respondent(s)

While it may seem obvious, the importance of identifying the proper respondents cannot be overstated. The identity of the respondents has significant implications for the life of the application – how the legal arguments are framed, the level of procedural complexity, and the time it takes to reach a conclusion. In fact, the HRTO places considerable weight on the choices of the applicant at the outset:

A human rights application represents the commencement of a legal proceeding by the applicant, and it is up to the applicant to identify the respondents against whom she wishes to proceed. (Bociurko v International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, 2017 HRTO 1123 at para 9)

Additionally, and significantly, the identity of the respondent circumscribes the potential remedies available to the applicant. As a general principle of litigation, an applicant or plaintiff can only recover remedies from a person named as a party. More specifically, section 45.2(1) of the Code gives the HRTO the power to make orders against “the party¬ who infringed the right [of the applicant].” [emphasis added]

For example, the HRTO recently considered a case where a student brought allegations of discrimination on the basis of disability (among other grounds) against the Toronto District School Board (TDSB). She was enrolled in a teacher education program at York University and attended at TDSB for the placement portion of her program. Sometime after experiencing the alleged discrimination in her placement at TDSB, York University removed her form the program entirely. However, the applicant, who was self-represented, named and made allegations only against the TDSB in her application. The HRTO noted, 

[i]t is important to observe at the outset that neither York University nor any program administers or instructors were named as respondents to this proceedings. As a result, there is no issue before me as to whether the applicant experienced discrimination as a result of the actions of York University of its program administrators or instructors. This is significant because, following her withdrawal from the practicum placement on January 30, 2014, the applicant was subsequently demitted, or removed, from the program, and was unsuccessful in her ensuring academic appeals seeking reinstatement. (para 3)

Consequently, the scope of the issues and the potential remedies available to the applicant were limited to those flowing from the actions or inactions of her mentor teacher at TDSB. 

Adding a Respondent at the HRTO

Pursuant to Rule 1.7(b) of the HRTO Rules of Procedure, the HRTO has the power to add parties to an Application in appropriate circumstances. This may come into play where the applicant does not learn about the responsibility of a party until after the application has commenced – for example, by way of the position taken by named respondents in their response, or through document disclosure. In these instances, the applicant may want to request that the HRTO add those identified parties as respondents to the application.

In exercising its power to add a Respondent, the HRTO will consider the following questions, as set out in Smyth v Toronto Police Services Board:

  1. Are there allegations made that could support a finding that the proposed respondent violated the Code?
  2. 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?
  3. Would it be fair, in all the circumstances, to add the proposed respondent?

 The test requires the HRTO to consider whether there are allegations pled in the Application (or amended Application) that it could lead to a finding of an infringement pursuant to the Code. The second stage is most often applied in cases where the proposed respondent is an individual and where an organization is already named as a respondent. Here, the Tribunal pays particular attention to whether the organizational respondent can effectively remedy the infringement, and whether the core allegations are against the individual in their personal capacity and not in the course of their duties as a representative of the organizational respondent (more about this specific issue in a future blog post).

At the third stage, the HRTO may consider various factors, including:

  • The effects of adding the proposed respondent on the hearing process;
  • The reasons the proposed respondent was not named at the beginning of the application;
  • Prejudice to other parties; and
  • The need for and likely effectiveness of a remedial order against the proposed respondent, if the application is successful.

 Applying the Smyth Test

The Smyth test is flexible in that it can be used for both adding and removing parties, and it is also responsive to circumstances where either the applicant or the respondent is the party making the request. This flexibility is perhaps best illustrated by looking at some examples of cases decided by the HRTO.

Where the Applicant Requests to Add a Party

Huston v Ryan ULC, is an example of where the HRTO allowed an applicant to add a party on the basis that the request was timely and would not cause prejudice. In that case, the applicant originally filed an application against two respondents (“Ryan” and “Bentall”), alleging that they had discriminated against him by failing to accommodate him and terminating him, because of his disability. 

In its response, Bentall denied the allegations and denied any relationship with the Applicant – employment or otherwise. Instead, Bentall identified C&W Services as the proper respondent, as it was contracted to provide services at the site in question and consequently, according to Bentall, had a direct service-provider relationship with the applicant. Bentall alleged that C&W Services was the party that failed to accommodate the applicant.

On this basis, the applicant filed a Request for an Order During Proceedings (RFOP) to add C&W Services as a respondent. Despite discrepancies in the timeline of when the alleged incident took place, the HRTO granted the applicant’s RFOP on the basis that adding the party would not delay or disrupt the proceeding:

I am satisfied that any delay in naming C&W Services as a respondent is explained by the fact that the applicant only became aware of the specific service provider when Bentall filed its Response and he moved within a reasonable period of time to ask the Tribunal to permit him to add the proper respondent. I therefore find the delay, if any, is not substantial enough to prejudice C&W Services’ ability to investigate the matter, secure witnesses and provide a full defence in this matter. (para 11) 

Similarly, in Robillard v Victoria Village Inc., the HRTO granted the applicant’s request to add a school board as a respondent by relying on the third stage of the Smyth test. In her original application, the applicant alleged that her co-op supervisor, Victoria Village, discriminated against her on the basis of disability. In its response, Victoria Village stated that the school board was responsible for notifying it of any accommodation requirements of co-op students and that the school board did not permit Victoria Village to communicate directly with students regarding medical information. 

The applicant filed a request to add the school board on this basis. With its mind turned to fairness and potential effective remedies, the HRTO agreed that the school board should be added as a respondent:

In light of the position taken by Victoria Village, I find it appropriate to add [the] School Board as a respondent so that the Tribunal is able to determine which respondent is responsible if a breach of the Code were found in this case. (para 7)

The HRTO took a slightly different approach in JS v Dufferin-Peel Catholic District School Board. In that case, the HRTO declined the applicant’s request to add the Ontario English Catholic Teachers’ Association (OECTA) as a respondent. The relevant facts of that case are as follows: the applicant (a minor) was a student with the respondent school board. The applicant alleged that the school board failed to accommodate his disability when it failed to use Applied Behavioral Analysis therapy in the classroom. The respondent defended these allegations, in part, by asserting that it was not permitted to allow non-Board, non-unionized therapists to attend in the classroom because of the collective agreement.

On this basis alone, without identifying the specific provisions of the collective agreement, the applicant filed an RFOP to add OECTA as a respondent. The HRTO denied the applicant’s request, relying heavily on the first step of the Smyth test – insufficient grounds pled to make out a prima facie case against OECTA. Contrary to the approach taken in Huston and Robillard, the HRTO found that third parties named in the response of the respondents was an insufficient basis for adding a party:

I agree with OECTA that legal defences asserted by a respondent are not an appropriate basis to add other parties. There must be specific allegations of discrimination to merit adding OECTA as a party. There are none here. (para 13)

The HRTO also relied on the delay to deny the applicant’s request. The application was filed almost one year prior to the applicant’s RFOP. The HRTO held that this would result in unacceptable delay for a case involving a child.

Where the Respondent Requests to Add a Party

The Smyth test plays out in an interesting way where an existing respondent requests to add a party as an additional respondent. In Bociurko v International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, the applicant was a member of respondent unions and alleged discrimination and failure to accommodate through the implementation of the drug and alcohol testing policies pursuant to the collective agreement. 

The union respondents defended these allegations on the basis that the substance of the Application relates to events involving the employer. The union respondents filed a RFOP to add the employer as a respondent, alleging that the employer contributed to the discrimination by, in part, requiring that the applicant undergo drug and alcohol testing. The union respondents argued that the employer would bear some liability should the Tribunal find a Code violation.

The applicant opposed the union respondents’ request and confirmed that he was not making any allegations of Code violations against the employer. The HRTO considered the test as set out in Smyth, but ultimately denied the respondents’ request. The HRTO relied on the third step of the Smyth test, and particularly, the applicant’s position that he did not wish to pursue allegations against the employer. The HRTO confirmed that “there is no process under the Code for a respondent to make the kind of third party claim that is permitted under the Rules of Civil Procedure.” (para 13)

The HRTO made a similar finding in Hill v Six Nations of the Grand River, where the respondent filed a request to add the Ministry of Community and Social Services (MCSS) as an additional respondent on the basis that MCSS may also have violated the Code and that the respondent would experience prejudice if MCSS was not a party.  Applying the same logic as in Bociurko, the HRTO declined to add MCSS as a respondent on the basis that the applicant expressed opposition to it being added.

Specific Challenges: Proper Respondents for K-12 Public Education 

In Ontario, educational services are administered through a complex legislative scheme set out in the Education Act (the “Act”). The Act provides for a de-centralized system that divides responsibility over education between school boards and the Ministry of Education (the “Ministry”).

Specifically, as recognized by the Ontario Court of Appeal in Wynberg v Ontario, school boards are responsible for administering the educational system at the operational level. As it relates to accommodating students with disabilities, this means that school boards develop their own special education plan, they oversee individual assessments, and develop and implement individual education plans and appropriate accommodations for students.  The Ministry is responsible for creating the regulatory framework within which the school boards operate.

On numerous occasions, applicants have brought applications against school boards alleging that the school board failed to provide appropriate accommodations in order for the applicant to access meaningful education. In these cases, applicants often include or request to add the Ministry as a respondent on the basis that, as the body responsible for education, it “indirectly” discriminated by failing to ensure that the school boards are abiding by provisions of the Act and the Code, or that it designed a policy framework that has a discriminatory effect. The applicants often argue that the Ministry ought to be obliged to oversee the accommodation process and to ultimately ensure that school boards, which are operating under the regulatory framework set out by the Ministry, are providing appropriate accommodations.

This line of argument has been categorically rejected by the HRTO, which typically refuses to include the Ministry in human rights applications against school boards (see, JS v Dufferin-Peel Catholic District School BoardEP v Ottawa Catholic School BoardSigrist and Carson v London District Catholic School Board). Citing Wynberg, the HRTO has confirmed that the division of responsibility means that “the Minister of Education does not directly provide education programs to students” and that consequently the Ministry is not an appropriate party in cases related to service delivery. Instead, the HRTO has carved out a narrow subset of cases in which the Ministry may be a proper respondent:

… the Tribunal has declined to add the Ministry as a party to Applications concerning the provision of special education programs and services except in very limited circumstances, such as where the allegation is that the Ministry has not responded to parents’ concerns in a timely manner or where the allegations, supported by evidence, related directly to an action or omission within the Ministry’s statutory mandate (citations omitted) (EP v Ottawa Catholic School Board, 2009 HRTO 499 at para 26)

Remedial Implications of the De-Centralized Scheme

The HRTO interprets and applies this de-centralized regulatory structure in a way that effectively immunizes the Ministry from being named as a respondent in human rights applications related to education. Consequently, the Ministry is absolved from the duty to accommodate or any remedial accountability.  Without the Ministry as a party, applicants are limited to individual case-by-case remedies from each school boards, which in turn may be limited by the policy or funding framework put in place by the Ministry.

In this way, students with disabilities who are affected in a broad way by regulations set by the Ministry are prevented from accessing meaningful remedies. One could argue that this result is incompatible with the ultimate goal of the test as set out in Smyth, which identifies proper parties, in part, on the basis of securing potential effective remedies for applicants.

For advocates contemplating which parties are appropriate respondents, a lawyer at ARCH may be able to provide you with advice through our Lawyer/Paralegal Consult Service.

September 14, 2018