Bhatti v. Pomer and Boccia Professional Corporation, 2009 HRTO 1366

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Azhar Bhatti

Applicant

-and-

Pomer and Boccia Professional Corporation and Sam Dhaliwal

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 31, 2009

Citation: 2009 HRTO 1366

Indexed as: Bhatti v. Pomer and Boccia Professional Corporation

1This Interim Decision deals with an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code"). The Application was filed on January 5, 2009. The applicant, Azhar Bhatti, alleges discrimination in employment on the grounds of disability.

2A hearing of the Application was scheduled for August 17 and 18, 2009. The applicant and David Pomer appeared. The hearing was adjourned for the reasons that follow.

3The Application named a corporate respondent and a personal respondent. The corporate respondent was identified as Pomer and Boccia Law Firm. The contact person for the corporate respondent was identified as David Pomer. The personal respondent was Sam Dhaliwal.

4A Response was filed on January 26, 2009. The Response indicated that the name of the corporate respondent was Pomer and Boccia Professional Corporation. Sam Dhaliwal was identified as the CEO and Director. A letter from Mr. Dhaliwal addressed to the Tribunal makes clear that the Response was filed by Mr. Dhaliwal in his capacity as personal respondent and also as the CEO of the corporate respondent. The Tribunal amended the style of action to identify Pomer and Boccia Professional Corporation as the corporate respondent.

5On May 11, 2009, the Tribunal issued a Confirmation of Hearing to the applicant, Pomer and Boccia Professional Corporation c/o Sam Dhaliwal, and Sam Dhaliwal. A copy of the Confirmation of Hearing was sent to David Pomer. The hearing was scheduled for August 17 and 18, 2009.

6On August 17, the applicant and David Pomer appeared. Sam Dhaliwal did not appear. Mr. Pomer and Mr. Bhatti advised that they had "settled". They indicated that the settlement was a verbal settlement only, although Mr. Pomer indicated that it would be reduced to writing in the near future. Mr. Bhatti stated that he wished to withdraw the Application against the corporate respondent but continue the Application against Sam Dhaliwal. Mr. Pomer and Mr. Bhatti proposed that I should hear Mr. Bhatti's evidence about the allegations against Mr. Dhaliwal even though Mr. Dhaliwal was not present. Mr. Pomer indicated that he wished to provide evidence in support of Mr. Bhatti's Application.

7Mr. Pomer asked to be sworn so that he could give evidence. Mr. Pomer provided some evidence about the rather complex relationship between the parties. He indicated that there is no dispute that Mr. Bhatti was employed by Pomer and Boccia Professional Corporation. Mr. Pomer testified that Mr. Dhaliwal was not the CEO of that corporation and that he was instead a partner. Mr. Pomer advised that the status of Mr. Dhaliwal and the corporation is the subject of ongoing litigation. He indicated that there is a Court order that provided that Mr. Dhaliwal had authority to act on behalf of the corporation but that this authority ended on a date in June 2009, upon which Mr. Dhaliwal's association with the corporation was terminated by Mr. Pomer. According to Mr. Pomer, previous to this, Mr. Dhaliwal brought a motion in Court seeking to have Mr. Pomer's association with the corporation severed. He further indicated that in the interim Mr. Dhaliwal had called the police at least ten times in relation to complaints concerning Mr. Pomer.

8Mr. Pomer provided a Statement of Claim filed by Mr. Dhaliwal and others against David Pomer, Susan Pomer and Pomer & Boccia Professional Corporation. The claim appears to pertain to "the debt recovery business of Pomer & Boccia Professional Corporation." It seeks a number of Declarations and Orders, including "a Declaration that the debt recovery business of Pomer & Boccia Professional Corporation carries on business in partnership with the Plaintiffs", an Order "dissolving the partnership of the debt recovery business" and "an interim and permanent injunction restraining the Defendants, David Pomer and Susan Pomer from interfering the day-to-day operation of the debt recovery business." Mr. Pomer indicated that he has only recently filed a response to the Statement of Claim.

9The Statement of Claim is dated February 2, 2009, approximately one week after Mr. Dhaliwal filed the Response with the Tribunal, on behalf of himself and, apparently, the corporate respondent.

10Mr. Bhatti advised that until the week before the hearing, he thought that he would be represented at the hearing by counsel from the Human Rights Legal Support Centre. He indicated that the Centre had withdrawn when it learned that Mr. Pomer and Mr. Bhatti intended to settle.

11As noted, Mr. Bhatti confirmed at the outset of the hearing that since he had settled with Mr. Pomer, he wished to withdraw the Application against the corporate respondent, but continue against Mr. Dhaliwal.

12Mr. Pomer assured me that Mr. Dhaliwal had received notice of the hearing. He knew this because in May 2009, Mr. Dhaliwal was carrying on business at the address to which the May 11, 2009 Confirmation of Hearing notice was sent.

13Mr. Pomer indicated that in his view, after hearing Mr. Bhatti's evidence, I would be able to find that Mr. Dhaliwal was personally responsible for any liability arising out of the allegations in the Application.

14I referred Mr. Pomer to section 46.3 of the Code:

46.3(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers' organization.

(2) At the request of a corporation, trade union, trade or occupational association, unincorporated association or employers' organization, the Tribunal in its decision shall make known whether or not, in its opinion, an act or thing done or omitted to be done by an officer, official, employee or agent was done or omitted to be done with or without the authority or acquiescence of the corporation, trade union, trade or occupational association, unincorporated association or employers' organization, and the opinion does not affect the application of subsection (1).

15I asked Mr. Pomer if he was concerned that the corporate respondent might have some vicarious liability for any liability that might accrue to Mr. Dhaliwal and whether this might impact on the settlement with the applicant. He indicated that in his view, section 46.3(1) did not apply in this case because Mr. Dhaliwal was a partner and not an officer, official, employee or agent. However, Mr. Pomer conceded that the section could be interpreted in different ways, and indicated that if it was, the status of the settlement with the applicant might be affected.

16After hearing from Mr. Pomer and Mr. Bhatti, I adjourned the hearing. While there may be circumstances where it is appropriate to proceed in the absence of a respondent, this case seems to have some unusual features. In the circumstances of this case it is appropriate to seek clarification about the status of Mr. Dhaliwal and his relationship with Pomer and Boccia Professional Corporation and also clarification of the current status of Pomer and Boccia Professional Corporation, and its status in the period June 15, 2007 to January 2008, the period to which the allegations in the Application relate. Noting the apparent acrimonious relationship between Mr. Dhaliwal and Mr. Pomer, I further found that it is appropriate to ensure that Mr. Dhaliwal receives full notice of any hearing. Mr. Pomer provided contact information for Mr. Dhaliwal based on an internet search which disclosed that Mr. Dhaliwal has a new business and new contact information.

17I accordingly make the following directions:

18A copy of this decision will be sent to Mr. Bhatti, Mr. Dhaliwal and to Pomer and Boccia Professional Corporation. The copy to Mr. Dhaliwal will be sent using the contact information provided by Mr. Pomer. The parties are reminded of Rule 1.13 of the Tribunal's Rules of Procedure, which require a party to notify the Tribunal and all other parties of any change in their contact information as soon as possible.

19Mr. Bhatti, Pomer and Boccia Professional Corporation, and Mr. Dhaliwal may, within three weeks of the date of this decision, make submissions respecting how the Tribunal should now deal with the Application. The parties may also submit any documents that may assist the Tribunal in understanding the relationship of the parties in the period from June 15, 2007 to January 2008 and currently, including but not limited to the issue of who has authority with respect to Pomer and Boccia Professional Corporation. In addition to any of the other issues identified, Mr. Dhaliwal should address in his submissions his reasons, if any, for his failure to attend on the scheduled hearing date. The applicant has indicated his intention to withdraw this application as against Pomer and Boccia Professional Corporation. If he wishes to do so he should confirm his intention in writing to the Tribunal with a copy to the parties. Documents and submissions must be filed with the Tribunal and delivered to each of the other parties.