HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

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Stephen Epstein Complainant

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York Condominium Corporation 67, Marsha Brandston and Rhona Leviston Respondents

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Allan Brandston Respondent on the Motion

INTERIM DECISION

Adjudicator: Matthew D. Garfield Date: July 17, 2003 Citation: 2003 HRTO 14

Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168

A P P E A R A N C E S

Ontario Human Rights Commission ) Raj Dhir, Counsel and ) Alia Ahmed, Articling Student

Stephen Epstein, Complainant ) Stephen and Alison Epstein

York Condominium Corporation 67, ) Marsha Brandston and Rhona Leviston, ) David Thiel and Eric Heath, Counsel Respondents )

Allan Brandston, Respondent on the Motion ) David Thiel and Eric Heath, Counsel

INTRODUCTION

1These are the Tribunal’s Reasons for Decision on a motion by the Ontario Human Rights Commission (“Commission”) to add Mr. Allan Brandston as a party respondent. The Tribunal ordered Mr. Brandston be added as a party respondent on June 25, 2003, with Reasons to follow. The case on the merits involves the Complaint by Mr. Stephen Epstein, an observant Jew, alleging that the Corporate and Personal Respondents denied him equal treatment on the basis of his creed in their failure to accommodate him in the operation of the condominium Sabbath elevator. The Complainant also alleges that he was subjected to a poisoned environment and harassment on the basis of creed. He alleges that the Respondents committed acts of reprisal against him after he lodged internal complaints and pursued his rights under the Human Rights Code, R.S.O. 1990, c. H. 19 as amended (“Code”).

2The Commission referred the subject-matter of the Complaint to the Tribunal as against the condominium corporation and two directors of its Board. The Commission, with the support of the Complainant, now seeks to add Mr. Brandston as a party. Mr. Brandston is the spouse of Respondent Marsha Brandston. Both lived in the building. Marsha Brandston was a member of the Board of Directors. Mr. Brandston, according to his counsel, was acting as an agent of the Board of Directors at all times.

ISSUES

3The Tribunal deals with the following issues:

(1) should Mr. Brandston be added as a party respondent, pursuant to section 39 of the Code; and

(2) if so, should the Tribunal not add him by virtue of the Corporate Respondent already being a party?

DECISION

4The motion is granted.

SUBMISSIONS OF THE COMMISSION

5Commission counsel argues that the two-part test enunciated by the Board of Inquiry (as it was then called) in Payne v. Otsuka Pharmaceutical Co., [2001] O.H.R.B.I.D. No. 23 has been met. The test is:

(1) is there, on the face of the record, some reliable evidence on which the Tribunal could make a finding of liability against the party; and

(2) if added, would the party suffer real and substantial prejudice not capable of being cured by the Tribunal.

[6] Specifically, Commission counsel submits that the first part of the Payne test has been satisfied based on the following:

(1) paragraph 3(f) of the Complaint – the Complainant alleges that Marsha Brandston’s husband, Allan Brandston, obtained a key and began turning the Sabbath elevator on and off. The Complainant also alleges that on July 1, 2000, Mr. Brandston turned off the elevator too early despite Mr. Epstein’s and his wife’s requests not to do so;

(2) paragraph 3(g) of the Complaint – the Complainant alleges that Mr. Brandston had spoken derogatorily of observant Jews, using the term “frummies”. He also alleges that Mr. Brandston advised him that he wanted the Sabbath elevator shut down;

(3) Interview notes with the Commission’s investigator – the Complainant stated:

(a) Mr. Brandston took the key to the Sabbath elevator and began to turn it on and off at his own times;

(b) Mr. Brandston advised the Complainant that he wanted to see the Sabbath elevator shut down;

(c) On July 1, 2000, Mr. Brandston turned the elevator off before the Sabbath was over despite the Complainant and his wife asking him not to do so;

(d) In July of 2000, the Complainant received telephone calls and a visit from the police investigating the allegation that he and his wife had threatened the lives of Mr. and Mrs. Brandston;

(4) the Complainant alleges that he and his wife received “anonymous” telephone calls whereby the callers would hang up, and that someone made an “anonymous tip” to the Jewish Family and Child Service alleging abuse against the Complainant and his wife toward their baby. The implication is that Mr. Brandston was somehow involved in these incidents.

7Commission counsel submits that the above evidence on the record, if believed, would give rise to liability on the part of Mr. Brandston. He argues that there is a strong nexus between Mr. Brandston and the violation of the Complainant’s right – Mr. Brandston is no mere bystander, peripheral to the issues before the Tribunal.

8Commission counsel states that the “substantial prejudice” part of the test has not been offended here. Mr. Brandston has had knowledge of the Complaint for some time – his wife was named in the Complaint. He was interviewed by the Commission on March 15, 2001.

9Finally, Commission counsel avers that the fact the condominium corporation is a party does not preclude the adding of a personal respondent where the test in Payne has been met. He cites the following passage in Payne, at para. 48, “This Board does not believe a personal respondent can use the fact that his/her employer is a party as a shield to being added as a party when that strong nexus appears to exist.”

10The Complainant adopts the submissions of the Commission.

SUBMISSIONS OF THE RESPONDENTS AND MR. BRANDSTON

11Counsel for the Respondents and Mr. Brandston does not argue that the “substantial prejudice” test has not been met here. He relies on the first branch. Counsel submits that the Commission has not presented reliable evidence on this motion upon which the Tribunal could make a finding of liability against Mr. Brandston. He quotes from the Payne decision at para. 17: there must be more than “mere allegations backed up by no evidence or patently untenable evidence.”

12With regards to the allegation that Mr. Brandston turned off the Sabbath elevator too early on July 1, 2000, despite the Complainant’s protest, counsel argues that the Commission has not brought forward any evidence concerning the correct time to turn off the elevator. Following the above submission, the Commission filed reply evidence dealing with the timing of the Sabbath. Counsel for the Respondents and Mr. Brandston did not make submissions regarding the Commission’s reply evidence.

13Regarding the issue of the alleged use of the word “frummies”, counsel argues that even if said, such comments would not make Mr. Brandston liable under the Code: “Mr. Brandston is entitled to express his views regarding the operation of the Sabbath elevator and the communication of such views are not grounds for a Complaint.”

14Counsel says that Mr. Brandston was entitled to call the police if he or his wife felt threatened by the Complainant and/or his wife. This does not constitute harassment by Mr. Brandston of the Complainant under the Code.

15With regards to the anonymous telephone calls to the Complainant and Jewish Family and Child Service, counsel says there is no evidence that Mr. Brandston had any connection to these anonymous calls.

16Counsel argues that Mr. Brandston “was acting as a duly-authorized representative of YCC 67 [the condominium corporation] in operating the Sabbath elevator at the material times.” Further, “any aspect of the Complaint relating to the operation of the Sabbath elevator is sufficiently addressed by the inclusion of the Corporate Respondent and it is not necessary to add Brandston as a personal Respondent.” He cites as authority the Board’s decisions in Makkar v. City of Scarborough (1987), 8 C.H.R.R. D/673 and Abouchar v. Metropolitan Toronto School Board (unreported – June 8, 1995; Picher). Counsel submits that the instant motion can be distinguished from the Board’s decisions to add personal respondents where there were already corporate respondents, in Payne and Cugliari v. Telefficiency Corp., [2001] O.H.R.B.I.D. No. 21.

APPLICABLE STATUTORY SCHEME

17Subsection 39(1) reads:

The Tribunal shall hold a hearing,

(a) to determine whether a right of the complainant under this Act has been infringed;

(b) to determine who infringed the right; and

(c) to decide upon an appropriate order under section 41,…

Subsection 39(2) reads:

The parties to a proceeding before the Tribunal are,…

(d) any person appearing to the Tribunal to have infringed the right;…

Subsection 39(3) reads:

A party may be added by the Tribunal under clause (2)(d) or clause 2(e) at any stage of the proceeding upon such terms as the Tribunal considers proper.

18The Divisional Court confirmed the broad, discretionary power of the Board of Inquiry (as it was then called) to add a party under subsections 39(2) and 39(3) in Payne v. Ontario, [2000] O.J. No. 1896.

19The Board set out the test to be applied in Payne. In that case, the Board added two corporate respondents and one personal respondent. The Board enunciated the following test:

(a) whether, on the face of the record, there is some reliable evidence on which the Board [Tribunal] could make a finding of liability against the party; and

(b) if added, would the party suffer real and substantial prejudice that is not capable of being cured.

20The Tribunal does not intend to repeat the entire passages of the decision in Payne here. Suffice to say that the Tribunal is applying the test as set out in Payne. However, the Tribunal would like to make a few brief comments on the test. First, the threshold is a low one; the moving party needs merely to show an “appearance” or “semblance” of a violation by the prospective respondent of the complainant’s rights under the Code. The motion record may include affidavits filed with attached exhibits. It is rare that viva voce evidence is called. It would not make much sense to have a lengthy motion involving viva voce evidence that would last almost as long as the hearing on the merits itself. During the hearing on the merits, the Tribunal will have the opportunity to determine the liability of the added party after full direct and cross-examinations, documentary evidence, etc. Secondly, adding a respondent does not equate to liability. In other words, at the end of the day, after a full hearing where the added respondent can avail himself/herself of the complete panoply of rights to mount a defence, that respondent may be found not to have violated the rights of the complainant. Thirdly, while the Code empowers the Tribunal to add a respondent “at any stage of the proceeding upon such terms as the Tribunal considers proper” (subsection 39(3)), it is preferable to add a respondent sooner, rather than later, in the proceeding. This is so in light of natural justice and fairness requirements as well as being conducive to a more efficient running of the hearing. To fulfill the statutory mandate in subsection 39(1) of holding a hearing to determine, (a) whether a right of a complainant has been infringed, (b) who infringed that right, and (c) what is the appropriate order (e.g., remedy), the Tribunal needs to have all of the relevant parties and the entire subject-matter of the complaint (e.g., allegations) before it. The sooner in the process that is accomplished, the better.

APPLICATION OF THE PAYNE TEST

21Counsel to the Respondents is not arguing that the second branch – prejudice – is offended here. Indeed, the Tribunal does not see any real, substantial prejudice being suffered by Mr. Brandston if he is added as a party.

22Counsel argues that the first branch of the Payne test has not been met. He submits that “there is no reliable evidence presented on this motion upon which the Tribunal could make a finding of liability against Brandston”. The Tribunal disagrees. With respect to the specific allegations that the Commission advances to add Mr. Brandston as a party respondent, as set out in para. 6 of these Reasons, the Tribunal finds that there is an “appearance” of liability in para. 6(1),(2) and (3).

23The Tribunal wishes to make a few specific comments about the grounds in para. 6 of these Reasons for adding Mr. Brandston as a party respondent. First, regarding the allegation about turning the Sabbath elevator on and off by Mr. Brandston at the wrong times, during the Sabbath, his counsel asserts that the Commission and Complainant did not adduce evidence of the exact time of the Sabbath. For purposes of this motion, the Tribunal is satisfied from the filed Complaint, notes of the interview with the Complainant and Interview notes with Rabbi Gottesman, about the timing of the Sabbath. The evidence filed on this point, together with evidence about allegations surrounding the shutting on and off of the Sabbath elevator by Mr. Brandston, is satisfactory to the point of the Tribunal being able to find that liability could attach to Mr. Brandston.

24In para. 6(2) of these Reasons, noted are the Complainant’s allegations about the alleged use of the word “frummies”, that Mr. Brandston spoke derogatorily about the observant Jews in the building and that he wanted to see the Sabbath elevator shut down. The Tribunal is satisfied that there is evidence on the record that could attach liability on the part of Mr. Brandston. Exactly what was said and the context in which it was said, including any nuances, is best left to the hearing on the merits. The Tribunal agrees with Mr. Brandston’s counsel that merely expressing one’s opinion against the continuation of the Sabbath elevator, assuming Mr. Brandston did indeed say that, is not a violation of the Code. Again, the content and context of what was said is key.

25As for the use of the term “frummies”, counsel for Mr. Brandston submits that there is no evidence before the Tribunal to suggest the word is derogatory and he asserts that it is not something of which the Tribunal should take judicial notice. The Tribunal notes that The New Joys of Yiddish defines “frum” as:

German: fromm, “pious.” Religious, observant, Orthodox. “He is frum.” “He is a frumer Jew.” “She is a frume.”

Mr. Brandston is alleged to have used the term “frummies”, a variant of “frum”. Whether the use of the term itself is derogatory and violates the Code or whether it does in the aggregate of everything that was allegedly said, is best left to the hearing on the merits.

26Regarding the allegation in para. 6(3)(d) of these Reasons about the police being called by Mr. Brandston over the alleged threats by the Epsteins, the evidence on the record is unclear. Certainly, it is not a violation of the Code if a respondent calls the police after receiving a threat from a complainant. It is a reasonable response. However, if any part of the calling of the police involved “getting back” at a complainant for asserting his rights under the Code, that is something different. The Tribunal will be able to determine any liability on this point after a full hearing on the merits. Suffice to say that the evidence on the record for purposes of this motion meets the threshold for adding Mr. Brandston.

27The Commission asserts in paras. 6(3)(d) and 6(4) that the evidence regarding the anonymous “hang up” phone calls and anonymous tip alleging child abuse demonstrate an “appearance” of liability sufficient to meet the Payne threshold. The Tribunal disagrees. The key word here is “anonymous”. The evidence indicates that many people in the building were aware of the dispute over the Sabbath elevator and the Epsteins’ involvement thereto. There is nothing on the record to suggest that Mr. Brandston was the caller, or involved in these incidents. If the Commission’s allegations had been limited to these two, its motion would have been dismissed.

ADDING A PERSONAL RESPONDENT WHERE A CORPORATE RESPONDENT IS ALREADY A PARTY

28Clause 39(2)(d) and subsection 39(3) are clear. Clause 39(2)(d) refers to “any person appearing to the Tribunal to have infringed the right”. Subsection 39(3) states, “A party may be added…” They do not restrict their application to corporate respondents only, or to adding personal respondents only where no corporate respondent is already a party. Notwithstanding that the power to add is a discretionary one, the Cugliari and Payne decisions demonstrate that the section is not to be used as a shield or defence. This Tribunal endorses that approach.

29Mr. Brandston’s counsel asserts:

Brandston was acting as a duly-authorized representative of YCC 67 [Respondent Corporation] in operating the Sabbath elevator services at the material times. Accordingly, the Respondents and Brandston submit that any aspect of the Complaint relating to the operation of the Sabbath elevator is sufficiently addressed by the inclusion of the Corporate Respondent and it is not necessary to add Brandston as a personal Respondent.

The test is not whether it is “necessary” to add a personal respondent. The Tribunal also notes that the subject-matter of the Complaint deals partly with the “operation of the Sabbath elevator”. There are other aspects to it – e.g., harassment, reprisal.

30The Commission disputes the assertion that Mr. Brandston was acting as an agent and “just following instructions”. There is evidence (e.g., letter from Mr. Spiegel, a former director of the Corporate Respondent, and interview notes with Rabbi Gottesman) filed to the effect that the Board of Directors, composed of many observant Jews, would not have permitted a Jew, or non-Jew for that matter, to operate the elevator for other Jews on the Sabbath. That would violate Jewish Law. Determining whether Mr. Brandston was acting as an agent of the Board of Directors or as an “occupant” of the building is best left to the hearing on the merits. The Tribunal notes that subsection 2(1) of the Code does not restrict the “right to equal treatment with respect to the occupancy of accommodation” to landlords, agents or occupants. Subsection 2(2) dealing with harassment in accommodation does restrict it to “the landlord or agent of the landlord or by an occupant of the same building…” Where it does become relevant, whether Mr. Brandston was an agent or mere occupant, is vis-à-vis subsection 45(1). That subsection allows for vicarious liability of the corporate respondent for the actions, in this case, of its agent. It does not apply to a mere occupant of a building. It becomes particularly relevant because that subsection does not apply to harassment in accommodation (subsection 2(2)). Accordingly, if Mr. Brandston were not added as a party respondent, the provision prescribing “any act or thing done or omitted to be done in the course of his or her employment by an officer…or agent [i.e., Mr. Brandston] of a corporation…shall be deemed to be an act or thing done or omitted to be done by the corporation…” would not be applicable. The Commission and Complainant would not be able to seek a finding of liability and remedy against Mr. Brandston or vicariously through the Corporate Respondent. This represents another reason why the “don’t add a personal respondent as a party where the corporate party is already named” assertion should not be used as a shield or defence. This is not to suggest that the Tribunal must keep a personal respondent as a party where all the parties consent to his/her removal.

Makkar and Abouchar Decisions

31The Tribunal wishes to deal briefly with the submissions of Mr. Brandston’s counsel concerning the Board’s decisions in Makkar and Abouchar. In Makkar, a 1987 decision of the then ad hoc Board of Inquiry, the adjudicator made the following obiter comment at para. 33588:

…this Board of Inquiry feels compelled to comment that because of the tremendous impact that can be caused upon a person as a result of an allegation of a violation of the Human Rights Code, the Commission should exercise great caution when it decides to name an individual as a party to proceedings. Individuals should not be named unless there is a real need to include them as parties and unless the Commission has a real intention to proceed against them. This is especially so where there is a corporate respondent and no practical need to name individuals in order to process the claim.

[Words underlined in original decision.]

The Board’s comment was referable to the Commission’s role in the pre-referral stage. The reasoning goes that the Commission should not proceed against a personal respondent where there is already a named corporate respondent, unless a “real need” exists to do so. That may or may not make good policy sense at the pre-referral stage for the Commission to “exercise great caution” in that situation. That is not for the Tribunal to comment on. The Board’s comment for “great caution” does not apply to the post-referral stage where the subject-matter of the complaint is before the Tribunal and the Commission plays a different role – that of a party with “carriage of the complaint”.

32Mr. Brandston’s counsel also relies on the Board’s decision in Abouchar. In that case, the Board determined that it was “not appropriate, at this time” and that it was premature to add a governmental and personal respondent. The Board wrote at pp. 8-9:

Parties should not be added as respondents to a complaint, particularly after a delay of some six years, absent good and compelling reason to do so. The Board of Inquiry readily understands the concerns of the Commission that the complaints, if successful, should attach to a party or parties who can be held accountable, both from the standpoint of responsibility and remedial redress, for any violation of the complainant’s rights. In the instant case, the allegations before the Board would suggest, on their face, that at all material times Mr. Lalonde was the employee or agent of one or other of the…[institutional respondents]…Further, given the passage of some six years and the apparent involvement of two institutional respondents within which Mr. Lalonde functioned at all times material to the complaints, having regard to the concerns properly expressed in the Makkar decision, the Board is not of the view that Mr. Lalonde should be added as a respondent in his personal capacity at this late hour.

None of the foregoing should be taken as concluding that it might not, at some later stage of the proceedings, be appropriate to add the Ministry, Mr. Lalonde or any other person as a party respondent…If, during the course of the hearing, compelling evidence should be adduced which would point to a justification for adding the Ministry, Mr. Lalonde or anyone else as a party, that issue may become ripe for determination, and may then be spoken to.

[Word bolded in original decision.]

33The Tribunal is of the view that the decision in Abouchar is not at odds with the approach taken by the Tribunal in the instant case, or by the Board in Payne and Cugliari. The Tribunal makes the following observations about the Board’s decision in Abouchar and the instant case:

(1) the delay of six years and the prospect of adding the personal respondent “at this late hour” are not present in the instant case;

(2) the delay issue raised concerns about natural justice and prejudice to the personal respondent, none of which is claimed, or indeed, exists in the instant case;

(3) the Board found there was no evidence suggesting the personal respondent was not acting as an agent at all material times. In the instant case, there is conflicting evidence on this point on the record; and

(4) the Board recognized its discretionary statutory power to add a respondent and indeed indicated that it may be necessary to do so in the course of the hearing if “compelling evidence should be adduced”. In the instant case, the Tribunal ordered the adding of Mr. Brandston early in the process, even before any of the pleadings had been filed.

34For all of the foregoing reasons, the motion is granted.