Ontario Human Rights Commission v. Chuang, 2005 HRTO 8

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ontario Human Rights Commission Commission

-and-

Lucy Farias Complainant

-and-

David Chuang (also known as David S. Chuang and S. David Chuang) carrying on business as Queenstate Dental Care Respondent

INTERIM DECISION

Adjudicator: Patricia E. DeGuire Date: February 18, 2005 Citation: 2005 HRTO 8

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 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca

INTRODUCTION

1The Commission brings this motion seeking an order for the following amendments:

a) To amend the Complaint and the Commission’s pleadings to correct the misnomers and to name the Respondent: “David Chuang (also known as David S. Chuang and S. David Chuang) carrying on business as Queenstate Dental Care”.

b) To amend the Complaint and the Commission’s pleadings to add the allegation of reprisal under section 8 of the Code.

c) To amend the Complaint and the Commission’s pleadings to add the ground of sexual solicitation or advance under clause 7(3)(a), and reprisal or threat of reprisal for the rejection of a sexual solicitation or advance under clause 7(3)(b) of the Code.

d) To amend the Complaint and the Commission’s pleadings to add the allegation that David Chuang had engaged in reprisal against the Complainant, contrary to section 8 and clause 7(3)(b) of the Code by forwarding to a collection agency, invoices for dental services, which the Respondent had caused to be provided to her as an employment benefit.

e) To amend the Commission’s pleadings to seek corresponding relief.

BACKGROUND

2Lucy Farias (the “Complainant”), filed a complaint with the Ontario Human Rights Commission (the “Commission”) dated August 3, 2001. She alleged that her employer, David Chuang, had discriminated against her with respect to employment because of sex, and he had harassed her in the workplace contrary to subsections 5(1) and 7(2) and section 9 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”)—(the “Complaint”).

3The Commission referred the subject-matter of the Complaint to the Human Rights Tribunal of Ontario (“HRTO”), which was received on April 21, 2004. The persons named in the Complaint to have contravened the Code are, “Dr. David Chuang and Queenstate Dental Care” (the “Respondent”).

4The Respondent participated in the Initial Conference Call, and the Mediation. He failed to participate in the telephonic Pre-Hearing Conference held on October 4, 2004. At that time, the hearing on the merits was scheduled for February 21, 22 and 23, 2005.

5The Tribunal is satisfied that the Respondent was duly notified of the hearing on the merits and this motion.

DECISION

6The motion is granted. The title of the proceeding, the Complaint and the Commission’s pleadings shall be amended according to the Order at paragraph 32.

DISCUSSION AND ANALYSIS

7It is settled law that the Tribunal has jurisdiction to amend the title of proceeding, and the Complaint. That is an attendant jurisdiction of clause 39(1)(a) of the Code. That interpretation is supported by the Tribunal’s jurisprudence: (e.g., Jeffrey v. Dofasco Inc.,[2000] O.H.R.B.I.D. No. 11 [C.H.R.R.] (Ont. Bd. Inq.)).

Amending the title of proceeding

8For the purpose of this motion, the Tribunal accepts the information in the Complaint—which is part of its record—that the Complainant had worked for an entity called “Queenstate Dental Care” and the person for whom she had worked answered to the name of “Dr. David Chuang”.

9In addition, the Tribunal accepts the information in Mr. Miller’s Affidavit and the Exhibits appended to it, specifically attesting to the nature of the entity Queenstate Dental Care, that it is a “sole proprietorship” and not a corporation; that the entity Queenstate Dental Care is not registered under the Business Names Act, R.S.O. 1990, c. B.17; and that the Respondent identifies himself as Dr. David S. Chuang, S. David Chuang, and David Suho Chuang.

10The Tribunal concludes that it is apposite and necessary to amend the Complaint and the Commission’s pleadings to correct the misnomers. A significant reason for amending the title of proceeding is that it gives greater certainty towards the identity of the Respondent. Because Queenstate Dental Care is a sole proprietorship, under which David S. Chuang carries on business, there is one Respondent.

Amending the complaint and the pleadings

SECTION 8 REPRISAL

11In its factum and Schedule “B” of its Motion Record, the Commission states:

(a) on or about April 28, 2001, the Complainant confronted the Respondent about his behaviour. He responded by acting “overly critical of [her] and creat[ed] an intolerable work atmosphere”.

(b) the Respondent left the Complainant threatening telephonic messages in April 2001.

(c) upon the termination of employment, the Respondent refused to issue the Complainant’s Record of Employment.

(d) on or about September 2001, the Respondent sent to a collection agency invoices pertaining to dental services, totalling $8,572.33, although he had assured her that the dental services were free; the services were to be an employment benefit.

12The allegation in paragraph 8(a) is recorded at paragraph (n) of the Complaint and paragraph 26 of the Commission’s pleadings. An inference of this allegation is that the Respondent had engaged in spiteful behaviour towards the Complainant because she had rejected his overtures. If proven, it may be enough to constitute reprisal under clause 7(3)(b) or sections 8 of the Code. Also, this may support an allegation of poisoned work environment.

13The allegation at paragraph 8(b) creates two concerns. First, there is no evidence before the Tribunal that the Respondent made those calls. Second, the only link between the calls and the Respondent is that the Complainant “believes” the Respondent had left the voice-messages, and her assertion that the calls ceased after she had made a complaint to the police. Further, there is no evidence before the Tribunal that the police spoke to the Respondent; or evidence of the content of the conversation between the Respondent and the police, if the police did speak to him.

14The Complainant asserts she received telephone messages from the Respondent, but there is no evidence before the Tribunal that, at the very least, she was able to identify his telephone number, that the caller had identified himself, that she had called back and the Respondent had answered, or that she had answered the telephone and was able to identify the Respondent’s voice through that contact. Besides, phone systems can distort voices: even live or by voice-messages. These messages are tantamount to anonymous calls. Thus, even in the light of the low test to be met, the Tribunal is not inclined to accept this allegation as one constituting reprisal.

15If the allegations in paragraph 8(c) and (d) are proven, they may constitute reprisal under section 8 of the Code. For the purpose of this motion, the Tribunal is content that these allegations occurred after the Complainant avers that she had demonstrated to the Respondent that his conduct was unwelcome. By all the evidence, there seems not to have been an internal complaint process: formal or otherwise. However, based on the evidence, the Respondent’s actions may be deemed as an imposition or threat of adverse consequences against the Complainant. (See Jones v. Amway of Canada Ltd., [2001] O.H.R.B.I.D. No. 9 (QL) 2001 CanLII 26217 (ON HRT), 39 C.H.R.R. D/480 affirmed [2002] O.J. No. 1504 at para. 5 (Sup. Ct. Ont. (Div. Ct.); and Ketola v. Value Propane Inc. (2002), 2002 CanLII 46510 (ON HRT), 44 C.H.R.R. D/20).

16The Complainant alleges that the Respondent withheld her Record of Employment (“ROE”) after she had protested about his conduct, and subsequently quit his employ. Similarly, she avers the invoices for dental services were sent to a collection agency after she had informed the Respondent that his conduct was unwelcome and after she had left his employ. The context and timing of the Respondent’s alleged actions are crucial. Thus, for the purpose of this motion, it is arguable that the Respondent intended the alleged acts.

17The Tribunal notes the specific allegations about submitting dental services to a collection agency are not in the original Complaint or the Commission’s initial pleadings. However, Boards have held that the absence of such allegation in the initial Complaint does not preclude an enquiry into such allegations. (See e.g., Riemer v. York Regional Police and Donald Kirk, [1997] O.H.R.B.I.D. No. 17 at p. 1 (Ont. Bd. Inq.)).

SEXUAL SOLICITATION OR ADVANCE: (CLAUSES 7(3)(a))

18By inference, the Respondent was the Complainant’s sole employer. He was “. . .in a position to confer, grant or deny a benefit or advancement to” the Complainant. Arguably, the Complainant rejected the Respondent’s overtures, albeit first with subtlety according to the Commission’s pleadings. For the purpose of this motion, the Tribunal is content that the allegations contained in the Commission’s pleadings at paragraphs 9, 15, 16, 17, 18, 21, 22, 24, and 25, if proven at a hearing on the merits, may meet the constituent elements of clause 7(3)(a).

REPRISAL OR THREAT OF REPRISAL FOR REJECTION: Clause 7(3)(b)

19The Tribunal is content that the allegation contained in the Commission’s pleadings at paragraph 31—the withholding of the Complainant’s Record of Employment, which resulted in the Complainant’s inability to collect Employment Insurance, and the Respondent’s failure to pay vacation pay as required by law—if proven, may meet the constituent elements of clause 7(3)(b). These allegations are with respect to the Complainant’s employ. Notably, the ROE and severance pay are critical instruments towards the severance of the employee/employer relationship, which the Complainant asserts she had initiated because she could not tolerate the Respondent’s touching, and the environment was not conducive to work. The withholding of them is tantamount to a poignant captivity; it forces contact even though the Complainant did not wish to do so. Also, the withholding of the ROE could have thwarted the Complainant’s access to well-needed benefits.

20The Tribunal find that the allegation regarding the “threatening phone calls in August 2001”, lacks evidentiary scope. At paragraphs 13 and 14 of these Reasons, the Tribunal concludes that the nexus between the calls, the Respondent and the police is precarious—even for the purpose of this motion—to support any finding at all at this juncture. Based on the evidence before the Tribunal, they are no more than anonymous telephone calls.

21If proven, while remitting the dental services invoices to a collection agency may constitute the elements of a section 8 reprisal, the Tribunal is not inclined to regard this as a potential clause 7(3)(b) infringement. The Tribunal does not regard this as part of the continuum of the employee/employer relationship. The Tribunal concludes that the alleged ordeal ensued with respect to employment. However, the employee/employer relationship nexus had been severed by then. Notably, the invoices were forwarded to the collection agency in September 2001, which was after the date the Complainant avers she had filed a police report—the report was filed in August 2001—and after the Complainant had filed the Complaint with the Commission. By then, the Complainant had already left the Respondent’s employ: she left May 26, 2001. Besides, the Complainant asserts that until the invoices were referred to the collection agency, she believed that the dental services were free. A more reasonable inference is, the Respondent’s act is more akin to a section 8 reprisal.

Prejudice to the Respondent

22In determining whether to amend the Complaint and the Commission’s pleadings to reflect clauses 7(3)(a) and 7(3)(b), and section 8 infringements, essentially, the Tribunal must assess whether doing so could result in prejudice to the Respondent. If there is prejudice, the Tribunal must turn its mind to the degree of prejudice and whether the prejudice can be cured.

23Because the allegations may differ from the initial Complaint or were not contained in it, is not a bar from amending the Complaint. The purpose of the Complaint is merely to give notice to the alleged perpetrator and moreover, it lays a foundation for the Commission’s processes. Thus, as the investigation or other procedures progress, more information may come to light, which may form the constituent element of a ground that had not been identified earlier. On the other hand, it is not enough that the new allegations arise out of the same factual transaction. These conclusions are consistent with clause 39(1)(a) of the Code that confers authority on the Tribunal to determine whether a right of the complainant has been infringed, and jurisprudence. (See, e.g., Riemer, supra; Entrop v. Imperial Oil Ltd. (No. 3) (1994), 1994 CanLII 18413 (ON HRT), 23 C.H.R.R. D/186).

24The Respondent has not participated in this motion. The Tribunal understands all the relevant documents were served on him at his last known address. For the purpose of this motion, the Tribunal has concluded that it is content that the Respondent was duly served.

25Although the Respondent has not participated in this motion, the Tribunal must still turn its mind to consider whether the Respondent would be prejudiced if the Complaint and the Commission’s pleadings are amended to add allegations of sexual solicitation or advance, reprisal or threat of reprisal for the rejection of sexual solicitation or advance, reprisal, and to change the relief being sought.

26Concerning the allegations under clauses 7(3)(a), the Tribunal agrees with the Commission that these allegations flow from the same transaction. For example, the allegations that the Respondent had invited the Complainant out on dates, on trips and to other social events are recorded in the initial Complaint and the Commission’s pleadings. It would be reasonable to infer that the Respondent is aware of these allegations.

27Thus, the Tribunal concludes that if there is any prejudice to the Respondent it may be so negligible that he still would be able, if he wishes, to make full answer and defence; it will not impede the conduct of a fair hearing.

28With respect to allegations of reprisal or threat of reprisal for rejection of sexual solicitation or advance—clause 7(3)(b), the Tribunal is content that these allegations are contained in the Commission’s pleadings, which were duly filed and served. Concerning the ROE, the Respondent, as the Complainant’s employer, was under a legal obligation to provide this document to the Complainant timely. It is reasonable to conclude that the Respondent is aware of these allegations. Thus, the Tribunal concludes that he would not suffer any prejudice that cannot be cured.

29Concerning the allegations under section 8 of the Code, the Tribunal concludes that the Respondent had forwarded the invoices for dental services to a collection agency in September 2001. The timing of doing so is phenomenal: after the Complainant avers that she had made a complaint to the police. The Respondent ought to be aware of his own actions, and therefore, it should not be a surprise to him. Knowing that a complaint had been filed with the Commission, it should be not be a surprise to him that this act would become part of the Complaint. The allegations about the withholding of the ROE are in the Commission’s pleadings.

30The Tribunal concludes that if any prejudice results from adding this new ground, it would be so negligible that the Respondent still would be able to make full answer and defence; the fairness of the hearing would not be marred by adding it.

31Notably, it is pragmatic to have the allegations, with respect to the Complainant’s employment with the Respondent, dealt with in one hearing. Adding new allegations is one step towards that exercise. The Commission and the Complainant still must adduce evidence that if believed, on the balance, establishes a prima facie case.

ORDER

32Consistent with its conclusions, the Tribunal makes the following orders:

1. The title of proceeding shall be amended to correct the misnomers and name the Respondent as David Chuang (also known as David S. Chuang and S. David Chuang), carrying on business as Queenstate Dental Care.

2. The Complaint shall be amended to add the grounds of sexual solicitation or advance under clause 7(3)(a), reprisal or threat of reprisal for the rejection of sexual solicitation or advance under clause 7(3)(b), and reprisal under section 8 of the Code.

3. The Commission’s pleadings shall be amended to add the grounds of sexual solicitation or advance, reprisal or threat of reprisal for rejection of sexual solicitation or advance, and reprisal and to reflect corresponding relief for the new grounds.

4. The Commission shall file and serve an amended Complaint and Statement of Facts and Issues to reflect the Tribunal’s determinations in these Reasons.