Torrejon v. 114735 Ontario, 2009 HRTO 939

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elsa Torrejon

Applicant

-and-

114735 Ontario Inc. o/a Weston Property Management, Doug McDonald and Geri McDonald

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: June 30, 2009

Citation: 2009 HRTO 939

Indexed as: Torrejon v. 114735 Ontario

WRITTEN SUBMISSIONS BY

Elsa Torrejon, Applicant ) Michelle Mulgrave, Counsel

)

1This Application, brought under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the Code) was filed on the applicant’s behalf through counsel at the Human Rights Legal Support Centre. It relates to the applicant’s employment with Weston Property Management. It names 114735 Ontario Inc. (the “numbered company”) and Tzvi Shuchat o/a Weston Property Management (the “sole proprietorship”) as respondents, together with two other personal respondents. The numbered company and sole proprietorship are at different addresses.

2Counsel for the numbered company and the two personal respondents filed a response, acknowledging that the applicant was employed by the numbered company. Mr. Shuchat filed a response on behalf of the sole proprietorship stating that he never employed the applicant and works on his own. He states that he is “not connected with this case”. Accordingly, in an Interim Decision, 2009 HRTO 795, counsel for the applicant was directed to either file a request to withdraw the Application as against Mr. Shuchat or to make submissions indicating why he should remain as a respondent.

3Counsel for the applicant suggests that Mr. Shuchat is named as a respondent only because the business name “Weston Property Management” was found to be registered to him during a search. She states that it is incumbent upon the respondents to clarify the relationship of Mr. Shuchat with the numbered company. She submits that Mr. Shuchat should not be removed as a respondent “since it has not been determined if Mr. Shuchat is a directing mind of 114735 Ontario Inc., especially when he has named his business Weston Property Management”.

4In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal stated as follows, at para. 5:

Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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.

These principles were recently applied to s. 34 applications in Boukort v. Securitas Canada, 2009 HRTO 890, and Winter v. Arnprior (Town), 2009 HRTO 713.

5The possibility that Mr. Shuchat might be a “directing mind” of the numbered company, having given his company the same business name, is not a compelling reason to continue the proceeding against him when he states he has no involvement in this matter. There is no reason to impose an obligation on the respondents to specifically provide evidence that he is not involved in the numbered company, particularly since his narrative clearly states that he was not and the numbered company’s detailed account of events does not include any mention of him.

6Tzvi Shuchat o/a Weston Property Management is removed as a party to this proceeding and the style of cause is amended accordingly.

7I am not seized.