Peikang Dai v. Presbytery of East Toronto, 2010 HRTO 1879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peikang Dai

Applicant

-and-

Presbytery of East Toronto

Respondent

interiM DECISION

Adjudicator: Ena Chadha

Date: September 16, 2010

Citation: 2010 HRTO 1879

Indexed as: Dai v. Presbytery of East Toronto

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), on December 31, 2009 alleging discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin, and association with a person identified by a Code-ground in the areas of employment, services, goods and facilities, and membership in a vocational association.

2Attached to the Application was a written narrative, entitled “Application to Human Rights Tribunal of Ontario Re: Discrimination to my wife because of association and Reprisal for exercising rights to apply to HRTO (TR-0185-09) at Presbytery of East Toronto, Synod of Central, North-eastern Ontario and Bermuda, Presbyterian Church of Canada”.

3Based on a review of the Application and accompanying documents, it appears that the applicant alleges that, in addition to his own concerns, his wife has been discriminated and reprised against because of her association with him. The applicant’s chronology starts in 1998 and ends in 2009 and contains voluminous allegations against numerous individuals, including the individual respondent and the corporate respondent. The Application contains various references to the applicant’s wife’s work and the applicant’s belief that his wife was discriminated against because of her association with him.

4The organizational respondent filed a Response on August 16, 2010 on behalf of itself and the individual respondent. In the Response, it is noted that the applicant filed a human rights complaint against both respondents with the Ontario Human Rights Commission (“Commission”) in 2007, which is now an on-going Transition Application under section 53(5) of the Code. The Response set outs several requests, including:

• a request that the Tribunal remove the individual respondent;

• a request that the Tribunal dismiss the Application because it is not properly filed on behalf of the applicant’s wife;

• a request that the Tribunal dismiss parts of the Application as being beyond the one year limitation period set out in section 34 of the Code; and

• a request that the Tribunal dismiss the Application for failing to make out a prima facie case of reprisal.

5The applicant filed a Reply on August 31, 2010, which reiterates many of his claims of mistreatment against himself and his wife. The applicant submits that the individual respondent should not be removed because the individual respondent participated in the actions taken by the corporate respondent in discriminating against him.

6I note the applicant has another section 34 Application proceeding before the Tribunal, Tribunal File 2010-04530-I (“the Knox Application”), in which Knox Presbyterian Church and eight individuals are named as respondents. In the Knox Application the applicant also alleges discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin and reprisal in the social areas of employment, housing, services, goods and facilities, and membership in a vocational association. Attached to the Knox Application is a written narrative setting out a chronology of allegations at “Knox Presbyterian Church, Presbytery of East Toronto, Synod of Central, North-eastern Ontario and Bermuda, Presbyterian Church of Canada”. The chronology starts in 1998 and ends in 2009 and contains general allegations against some of the individual respondents and the corporate respondent. The Knox Application is to be scheduled for a teleconference hearing on a variety of preliminary issues. See: Dai v. Knox Presbyterian Church, 2010 HRTO 1730.

REQUEST TO REMOVE INDIVIDUAL RESPONDENT

7The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

8The organizational respondent submits that at all material times the individual respondent was acting in his capacity as a clerk of the organizational respondent and ought not be named as an individual respondent. The organizational respondent submits that it is not appropriate to continue the proceedings as against the individual respondent.

9I find that the factors present in favour of removal of the individual respondent. The allegations with respect to the individual respondent relate directly to his role with the organizational respondent and decisions made in this official capacity. It appears that the organizational respondent has agreed to assume responsibility for the actions of the individual respondent should any violations of the Code be determined. In these circumstances, I do not see a compelling reason to continue the Application against the individual respondent. As such, the Tribunal orders that the individual respondent is removed as party to the Application and the style of cause is amended accordingly.

SECTION 53(8)

10Section 53(8) of the Code states that no application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV of the Code.

11It appears that the applicant filed a human rights complaint with the Commission which is now proceeding as a section 53(3) Transition Application. A hearing in that matter has started, but has not finished. An Interim Decision, Dai v. Presbyterian Church of Canada, 2010 HRTO 883, reconsideration refused 2010 HRTO 1195, has been issued in the Transition Application. It appears that the current Application and the Transition Application may deal with overlapping allegations of discrimination in reference to a similar period of time against the same respondents.

DELAY/TIMELINESS

12Section 34 of the Code provides:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under subsection 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

13The Code clearly states, in section 34(2), that an applicant may not apply to the Tribunal more than a year after the last event giving rise to the Application unless the Tribunal is satisfied that the delay was incurred in good faith. Where the Tribunal is not satisfied that the delay was incurred in good faith and that no substantial prejudice will result to any person affected by the delay, it has no power to relieve against the one-year time limit and to determine the Application.

PRIMA FACIE CASE

14The Tribunal considers a prima facie case to be one in which if an applicant’s allegations, as presented, are accepted as true, (absent any answer from the respondent(s)) they support a finding that the Code has been violated. See: Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28. The Tribunal has determined that an application may be dismissed on the basis of the applicant’s failure to establish a prima facie case of discrimination before the applicant has presented evidence. See: Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025.

CONSOLIDATION

15I note that the Interim Decision in the Knox Application (Dai v. Knox Presbyterian Church, 2010 HRTO 1730) deals with many of the same issues raised in this Interim Decision, specifically delay, section 53(8) and no prima facie case.

16Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together. In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

17Given the common facts and issues and overlapping interests present in these Applications, the Tribunal directs that a copy of this Interim Decision be served on all parties to the Knox Application. The Tribunal further directs that, within 14 days from the date of this Interim Decision, all parties to the current Application and Knox Application write to the Tribunal and confirm their position regarding consolidation of these Applications for purposes of hearing and deciding the preliminary issues. If any party does not consent to consolidation, then such party should provide submissions regarding why the two Applications should not be joined for of hearing and deciding the preliminary issues.

ORDER

18In these circumstances, it is appropriate to receive submissions addressing the following issues:

1. Whether this Application is barred, in whole or in part, by virtue of section 53(8) of the Code?

2. Is the applicant prevented from proceeding with the allegations before 2009 on the basis of delay and whether any delay was incurred in good faith or will result in substantial prejudice?

3. Is the applicant prevented from proceeding with the allegations with respect to his wife?

4. Does the Application raise a prima facie case of discrimination and reprisal against the respondent?

19The applicant is directed to provide written submissions addressing the four issues identified in paragraph 18, including any caselaw, to the respondent and file them with the Tribunal within 14 days from the date of this Interim Decision. If he does not do so, the Tribunal may dismiss his Application as being abandoned. If the respondent wants to respond to the applicant’s written submissions, it shall provide written submissions, including any caselaw, to the applicant and file them with the Tribunal within 14 days following receipt of the applicant’s submissions.

20The Tribunal will consider the parties’ submissions, and may determine any of the issues set out above based on the parties’ submissions, and/or may schedule future steps accordingly.

21I am not seized of this matter.