HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kyung Lee
Applicant
-and-
City of Ottawa, Ottawa Asian Heritage Month Society, Asian Health Committee, and Sally Zhang
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Indexed as: Lee v. Ottawa (City)
1This Interim Decision addresses a Request to add respondents in this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application, as filed, names the Asian Health Committee (under Asian Heritage Month Society) and Sally Zhang as respondents. Ms. Zhang is an employee of the City of Ottawa's Public Health Department.
2The Application alleges discrimination in goods, services and facilities on the basis of creed. It alleges that that, during an event called "Health is Wealth" in Ottawa, part of Asian Heritage Month 2008 events, a booth for a Falun Gong Group in which the applicant was a participant was cancelled in violation of the Code.
3Ms. Zhang's Response, filed through counsel, states as follows:
The "Asian Health Committee [under the Asian Heritage Month Society]" that the Applicant refers to is not a separate legal entity or corporation. Rather, it is a steering or organizational committee organized through the Ottawa Asian Heritage Month Society to plan the "Health is Wealth" fair. The City of Ottawa is not directly responsible for this fair, but Sally Zhang, in her capacity as a City of Ottawa Public Health Nurse was the co-chair of the committee.
4The applicant then delivered and filed a Request for Order During Proceedings seeking to add Ottawa Public Health as a respondent and to correct the name of the other organization respondent to the Ottawa Asian Heritage Month Society (the "Society").
5Counsel for the City of Ottawa states that the request to add Ottawa Public Health is unnecessary as he has already responded on behalf of both the City of Ottawa and Ms. Zhang (although the response states it is only on behalf of Ms. Zhang). He argues that the Society should not be added as a respondent as there does not appear to be any such organization as a legal entity that could respond to the Application.
6The Society filed a Response to the Request for Order which states that the Asian Health Fair was not under the direction, supervision or control of the Society. It states that the Asian Health Committee worked and existed independently from the Society, and that it merely listed the event in its brochure as part of the Calendar of Events.
DECISION
7In Smyth v. Toronto Police Services Board, 2009 HRTO 1513 at para. 12, the Tribunal set out the following questions to be considered in a request to add a respondent:
(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 application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.
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8With regard to the first question, the City of Ottawa and Ms. Zhang appear to take the position that an unincorporated association cannot be a respondent in the Tribunal's process. However, s. 46.3 (1) of the Code reads as follows:
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.
Without deciding the issue, it appears to me that there is at very least a legal and factual argument that could be made that certain unincorporated associations could be liable under the Code. Accordingly, in my view the fact that the Asian Health Committee and the Ottawa Asian Heritage Month Society are unincorporated organizations is not a reason to find that they should not be respondents.
9In terms of the facts, there is disagreement between the potential respondents over which organization was responsible for the "Health is Wealth" fair, and whether it is a separate organization from the Society. While the City and Ms. Zhang, its co-chair, say it is a steering or organizational committee of the Society, the Society says that it is a separate organization.
10Given the allegations made by the applicant, the respondent, and the potential respondents, there are, in my view, allegations made that could support findings that the City, the Asian Heritage Month Society, and the Asian Health Committee violated the Code. Given the uncertainty over responsibility for the alleged discrimination, it would be fair, in all the circumstances, for them to be named as respondents. In light of the Asian Heritage Month Society's allegations regarding the responsibility of the Asian Health Committee, it would not be appropriate to remove the latter as a respondent.
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11Accordingly, I order that the City of Ottawa and the Asian Heritage Month Society be added as respondents and the style of cause be amended as set out above. The City and the Asian Heritage Month Society shall file their Responses within 35 days of the date of this Interim Decision. In all the circumstances, the Asian Health Committee shall have until that date to file its Response.
12I am not seized.
Dated at Toronto, this 11th day of December, 2009.
"Signed By"
David A. Wright
Interim Chair
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