Hidalgo v. Glebova, 2010 HRTO 1666

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mery Elizabeth Hidalgo Applicant

-and-

Nadedja Glebova Respondent

interim decision

Adjudicator: Jay Sengupta Date: August 11, 2010 Citation: 2010 HRTO 1666 Indexed as: Hidalgo v. Glebova

WRITTEN SUBMISSIONS BY

Mery Elizabeth Hidalgo, Applicant ) Mary Ellen McIntyre, Counsel Michael Topolinski ) Scott A. Rosen, Counsel

1This is an Application filed on January 19, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") alleging discrimination on the basis of disability, ancestry and ethnic origin. The applicant initially named Amore Food Group and Nadia Deeb as respondents. She then sought to amend her Application to name AFC Food Group Inc. and Nadedja Glebova as respondents instead. That request was granted in an earlier Interim Decision, 2009 HRTO 2179.

2In advance of the hearing, the applicant filed a Request for Order During Proceedings in which she sought, among other things, to add Michael Topolinski, a director of the corporate respondent, as a personal respondent. The materials attached to the Request indicated that the corporate respondent, AFC Food Group Inc., has "gone into receivership" and that "the claim against them can therefore not proceed".

3A Case Assessment Direction was issued in which the applicant was directed to come to the first day of hearing prepared to address the issues raised by the receivership, including whether there was a stay of proceedings as a result of the receivership, and the effect of a stay on the continuation of the Application against any of the respondents or proposed respondents. She was also directed to bring relevant documents relating to the receivership such as a court order and the contact information of the receiver involved

4The applicant was also directed to deliver a copy of the Case Assessment Direction to the receiver and the proposed personal respondent.

5Neither the receiver nor the proposed personal respondent attended the first day of hearing. During the hearing, the applicant confirmed that she did not intend to continue the Application against the corporate respondent and that she intended to proceed against the personal respondent, Nadedja Glebova, and to seek to add Michael Topolinski, a director of the corporate respondent, as a personal respondent.

6As I was not persuaded that the court-appointed receiver and Michael Topolinski had received adequate advance notice of the Request filed by the applicant, another Case Assessment Direction was issued directing the applicant, the court-appointed receiver and Michael Topolinski to make written submissions with respect to the applicant's request to add Michael Topolinski as a personal respondent.

7Submissions have been received from the applicant and the proposed personal respondent in which the parties refer me to Tribunal decisions discouraging the unnecessary naming of personal respondents, Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and outlining factors to be used in deciding whether to add a personal respondent, Smyth v. Toronto Police Services Board, 2009 HRTO 1513.

8The applicant argues that because the corporate respondent is no longer available to respond to or be held liable for the alleged breach as a result of the bankruptcy proceedings, it would be fair to the applicant and the remaining personal respondent to add Mr. Topolinski as a party. The applicant argues that as president of the corporation, Mr. Topolinski knew or ought to have known about the alleged discrimination and his failure to act amounts to a violation of the Code.

9The proposed respondent, for his part, argues that the fact that the corporate respondent is in receivership is not reason enough to add him as a respondent. He points out that there is no allegation that he had ever met the applicant or had any interaction of any kind with the applicant and, in fact, that he was residing and conducting business overseas and was not in Ontario during the material time. He suggests that where there is no connection or nexus between the alleged human rights violations and his actions; he ought not to be added as a party.

10Neither of the parties have suggested that there is anything in the Order of the Superior Court, dated November 13, 2009, appointing a receiver, that prevents the adding of Mr. Topolinski as a personal respondent in this matter.

11The Tribunal held in Smyth v. Toronto Police Services, supra, that when determining a request to add a respondent, the Tribunal should consider the following three questions:

(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 that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at para. 5, which focus principally on whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. The factors from Persaud, supra, are applicable to both requests to add individual respondents and requests to remove them. 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, and prejudice to the other parties.

12In granting a request to add a director as a personal respondent in circumstances involving a corporate respondent in the midst of bankruptcy proceedings in Cugliari v. Telefficiency Corporation, 2001 CanLII 26229 (ON H.R.T.), the Tribunal had regard to the fact that the director was involved in the investigation and termination decisions made by the corporate respondent that were alleged to be discriminatory.

13In the present case, the Application does not include any allegation that the proposed respondent interacted with the applicant in any way. In fact, the original Application does not make any reference to Mr. Topolinski at all. The applicant now argues that the Code violation is that the respondent failed to act on information that he ought to have known about. There is no support for the argument that Mr. Topolinski, as a director of the corporation, ought to have known about the alleged discriminatory conduct and nothing in the materials submitted that suggests that he was involved in any of the events in question or that he had knowledge of the alleged discrimination.

14I am not persuaded by the applicant's argument that it would be unfair to the applicant and the other named personal respondent to refuse to add the proposed personal respondent. There is no suggestion that the receivership is improper or connected to these proceedings in any way. The fact that the applicant cannot pursue a remedy against the corporate respondent does not give rise to a right to a remedy against Mr. Topolinski.

15The applicant's Request that Michael Topolinski be added as a personal respondent is denied. The applicant's Request that the corporate respondent be removed as a party is granted and the style of cause is amended accordingly.