HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Lillian Napierala
Applicant
-and-
Paula Bosanac
Respondent
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: Napierala v. Bosanac
1This Interim Decision deals with a request by the applicant to withdraw her Application against the corporate respondent (“North of Superior”) and to address the status of the Application against the personal respondent.
Background
2The Tribunal issued an earlier Interim Decision in this case, 2009 HRTO 348 (the “Interim Decision”). The Interim Decision directed the respondents to file Responses by April 9, 2009, and explained the potential consequences if Responses were not filed. A Response was not received from either North of Superior or the personal respondent.
3On March 30, 2009, the Applicant wrote to the Tribunal to advise that she wished to withdraw her Application against North of Superior but not against the personal respondent. She provided further particulars regarding her allegations against the personal respondent.
4On April 3, 2009, the Tribunal received a Request to Withdraw an Application (“the Request”). The Request was sent on the applicant’s behalf by counsel. The Request was delivered to North of Superior and the personal respondent and a Tribunal Statement of Delivery form was provided in respect of each. A covering letter from counsel confirms that the Request is only in respect of North of Superior.
5On April 9, 2009, the Tribunal received correspondence from counsel for North of Superior. Counsel advised that he is representing North of Superior in a civil matter concerning the same issues as those raised in the Application. He indicates “as such my client will not be providing a response to the Tribunal by April 9, 2009, as we understand that the Complainant will not be pursuing this Complaint.”
6The Interim Decision sent to the personal respondent was returned to the Tribunal, with the notation “refused by addressee”. All of the Tribunal’s earlier correspondence to the personal respondent was returned on the same basis.
The Application against North of Superior and the civil action
7In the Application, the applicant advised that she had filed a civil action alleging discrimination and that the action was continuing. She provided a copy of the Statement of Claim which includes, among other things, a claim for damages
arising from the Defendant’s discrimination and harassment against the Plaintiff on the basis of her disability and the Defendant’s failure to accommodate the Plaintiff in her employment.
8The Statement of Claim alleges that the applicant’s employment was terminated in contravention of the Code and claims damages based, among other things, on
aggravated and/or punitive damages based on the actions of the Defendant’s described above, including but not limited to, the Defendant’s failure to comply with its obligations under the Human Rights Code.
9The Statement of Claim also states that the plaintiff “pleads and relies upon the provisions of the Ontario Human Rights Code.”
10Section 34(11) of the Code provides:
34.(11) A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
11Section 46.1 confers on a court the power to make remedial orders where the court finds a Code-protected right has been infringed.
12In this case, the applicant has commenced a civil proceeding in a court and is seeking damages in that proceeding on the basis of, among other things, an allegation of a Code-protected right.
13In these circumstances I am satisfied the Application against North of Superior is barred by section 34(11).
14Since the Application against North of Superior is barred, it is not necessary to consider the applicant’s request to withdraw the Application. The style of cause is amended to reflect that North of Superior is not a party to the Application.
The Application against the personal respondent
15The next issue is the status of the Application against the personal respondent. The applicant has indicated that she wishes to continue the Application against the personal respondent.
16There is a connection in this case between the personal respondent and North of Superior. According to the Application, at the relevant times, the personal respondent was the Chair of the Board of Directors of North of Superior. Whether there is an ongoing relationship is not clear. In general, a corporation is legally liable for the actions of its officers. While the Statement of Claim names only North of Superior as a defendant, it includes allegations regarding actions and decisions of the Board of Directors.
17There thus appears to be some overlap between the Application against the personal respondent and the civil action against North of Superior. This raises the question of whether section 34(11) bars the Application against both the personal respondent and North of Superior.
18It is necessary to determine this issue before addressing the consequences of the personal respondent’s failure to respond.
19The applicant is entitled to make submissions about whether section 34(11) bars her right to bring an Application against the personal respondent. Submissions should address whether the allegations in the Application against the personal respondent can be distinguished from the allegations in the civil action and whether section 34(11) allows an applicant to bring an Application against a personal respondent who was, at the relevant times, an officer of the defendant in a civil action. They should also clarify how the allegations against the personal respondent relate to grounds of discrimination under the Code.
20If the applicant wishes to make such submissions, they must be delivered to the Tribunal within two weeks of the date of this Interim Decision.
21A copy of this Interim Decision will be sent to the personal respondent. The applicant will also send a copy of any submissions to the personal respondent. If the personal respondent wishes to make submissions she must deliver them to the Tribunal, the applicant, and the corporate respondent within two weeks of receipt of the applicant’s submissions. In respect of this issue the Tribunal is prepared to accept and consider submissions from the personal respondent notwithstanding her failure to respond in a timely way to the Application.
22I am not seized of this matter.
Dated at Toronto, this 6th day of May, 2009.
“Signed by”
Brian Cook
Vice-chair