Nina Lozovsky v. Bond Place Hotel, Carlito Gomes, and Maged Girgas, 2009 HRTO 1960

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nina Lozovsky

Applicant

-and-

Bond Place Hotel, Carlito Gomes, and Maged Girgas

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 18, 2009

Citation: 2009 HRTO 1960

Indexed as: Lozovsky v. Bond Place Hotel

1The purpose of this Interim Decision is to address the respondents’ preliminary request to remove the personal respondents and clarify the subject matter of the Application.

Clarifying the Subject Matter of the Application

2When the applicant filed the transition Application she attached a supplementary affidavit, providing further particulars of the alleged harassment and reprisal she experienced at the hands of the respondents. The respondents assert that the affidavit is an attempt to expand the subject matter of the Application as it contains new allegations. In my view, the affidavit provides further particulars of the allegations set out in the original complaint, and does not improperly expand the subject matter of the Application.

Removing Personal Respondents

3The applicable principles for removing parties were enunciated in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras 4-5:

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 [is] 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?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

4The respondents seek to remove the respondents Girgas and Pena on the basis that there are no allegations of harassment by them. The only allegation against Ms. Pena is that she asked security to escort the applicant from the premises. I am satisfied that she was acting in the course of her employment and there is no reason for her to remain as a respondent.

5However, the applicant alleges that the respondent Girgas threatened her when she complained about the harassment which could be a form of reprisal. In these circumstances, there is a possibility that the Tribunal could make a specific finding of liability against Mr. Girgas personally. Accordingly, it is not appropriate to remove him from the proceedings at this time.

6The style of cause has been amended to reflect the removal of Ms. Pena.