HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Maria Galipo
Applicant
-and-
St. George Property Management Inc.
Respondent
AND B E T W E E N:
Maria Galipo
Applicant
-and-
Metropolitan Toronto Condominium Corporation #658
Respondent
INTERIM DECISION
Adjudicator: Judith Hinchman
Indexed as: Galipo v. St. George Property Management
written submissions BY
Maria Galipo, Applicant ) Michael Weissenborn,
) Counsel
St. George Property Management Inc. and ) Raj Anand,
Metropolitan Toronto Condominium Corporation ) Counsel
#658, Respondents )
1The applicant filed two complaints dated August 5, 2005 (the “Complaints”) with the Ontario Human Rights Commission (the “Commission”) alleging a breach of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) by the respondents. The applicant abandoned the Complaints and filed Applications TR-0558-09 and TR-0558-09 (the “Applications”) with the Human Rights Tribunal of Ontario (the “Tribunal”) pursuant to s. 53(5) of Part VI of the Code. By previous order of the Tribunal, these two files are being processed together. The applicant alleges discrimination in relation to housing accommodation on the basis of disability and reprisal.
2This Interim Decision addresses the respondents’ Request for reconsideration of the Tribunal’s Interim Decision, 2009 HRTO 1704 (the “Interim Decision”). That Interim Decision denied the respondents’ request that certain issues in these Applications be dismissed pursuant to s. 34(11) or s. 45.1 of the Code, or as an abuse of process on the basis of a previous settlement by the parties. The respondents relied on the existence of a Parking Agreement but had not submitted it to the Tribunal.
3The respondents now request that the Interim Decision be reconsidered on the basis that the document was inadvertently omitted from their submissions and is a central document showing that the parties had settled the accommodation issues raised in the Applications. The respondents claim that they inadvertently failed to attach a Parking Agreement that “is the principal piece of evidence demonstrating that the “accommodation” aspect of this case has already been settled in writing by the parties.” The respondents state that they did not realize the Parking Agreement had been missing from their submissions until they received the Interim Decision. The applicant has not disputed the existence of the Parking Agreement or that the respondents sought to rely on it.
4The respondents have now filed the Parking Agreement, and after reviewing it, the Tribunal directed the parties to make submissions on the request.
5This Interim Decision also addresses the respondents’ request that the personal respondents be removed from the Applications.
THE PARKING AGREEMENT
6In her Complaints, filed August 5, 2005, the applicant states that she has a disability (claustrophobia and panic disorder) and required above ground parking as an accommodation. She claimed to have requested this accommodation and been unfairly denied it.
7The Parking Agreement references the MTCC’s Code obligations to accommodate disabilities of residents and agrees to provide to the applicant an outdoor parking space in visitor parking at the same rate as that charged to her for her previously rented underground parking space. All parties are given the right to terminate the Parking Agreement with appropriate written notice.
8While the parties disagree about whether or not the Parking Agreement actually settled the accommodation issues raised in these Applications, it does appear to be potentially determinative.
REQUEST FOR RECONSIDERATION
9The respondents have made the request that the Tribunal now consider the Parking Agreement which was inadvertently omitted in their earlier submissions in the form of a Request for reconsideration. Reconsideration is available for final decisions which include decisions that dispose of some or all of the central issues in an application as between the parties; Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34. There may be some issue as to whether an Interim Decision which declines to dismiss an Application pursuant to s. 34(11), s. 45.1 of the Code or as an abuse of process is a final decision for the purposes of reconsideration. However, I need not determine this issue as I am satisfied that the respondents meant to attach the Parking Agreement to their submissions and inadvertently failed to do so and that it is relevant to the request that certain issues in these Applications be dismissed on the basis of this previous Agreement . I accept that this was an error and that the Tribunal should exercise its discretion to allow the respondents to make further submissions on the relationship between the Parking Agreement and the request to dismiss issues in the Applications on the basis of abuse of process or s. 34(11) and s. 45.1 of the Code.
10At the same time, however, it appears that oral submissions will be required in order to determine the respondents’ Request that the parking accommodation issues in these Applications be dismissed because of the Parking Agreement and that it would be most fair, just and expeditious to allow the parties at the outset of the hearing of this matter to make oral submissions as to the effect of the Parking Agreement. The remaining issues in these Applications will be heard following that preliminary matter.
REQUEST TO REMOVE PERSONAL RESPONDENTS
11Pursuant to Rule 4.3(b) of the Rules of Procedure for Transitional Applications, the Tribunal has the power to “add or remove a party.” In Persaud v. Toronto District School Board, 2008 HRTO 21, the Tribunal suggested that the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent?
12The Tribunal continued to suggest that “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.” Persaud,supra.
13The respondents’ position is that three of the personal respondents were corporate respondent MTCC board members and acting in that capacity and the other personal respondent was the property manager of the other corporate respondent St. George Property Management Inc. at all times acting in the ordinary course of his employment. The respondents also submit that the corporate respondents take responsibility for and will satisfy any remedies that arise from the actions of these individuals.
14Having considered Persaud, supra, the applicant now consents to the removal of the personal respondents, Sid Moschenberg, Susan Walsh, and Maxine Marz.
15I can see no compelling reason to continue the proceedings as against these personal respondents.
16On the other hand, the applicant maintains that at all relevant times personal respondent, Dorothy Freitag was not an officer, director, agent, servant, or employee of either respondent corporation and thus should not be removed.
17The respondents admit that they were mistaken in that Ms. Freitag was not a member of the MTCC board on the date that she was alleged to have uttered harassing comments but that she was an MTCC board committee member at that time. The respondents urge that as a board committee member Ms. Freitag was in a similar position as the others originally named as personal respondents in that she was subject to the MTCC’s Declaration, By-laws, and Rules and that MTCC has confirmed that it will assume responsibility if Ms. Freitag is found liable in respect of those comments. The respondents therefore argue that the Persaud factors apply here too. In addition, the respondents cite Perron v. Conseil Scolaire de District Catholique des Aurores Boreales, 2009 HRTO 1228 to argue that because the allegations in this case against Ms. Freitag are peripheral to the central issues in the case, there is no compelling reason to continue the proceedings as against her.
18Examining the underlying Complaints, I agree with the respondents that the allegations with respect to Ms. Freitag are not the central issues in the Applications. Furthermore, she was acting in her capacity as an MTCC board committee member at the time and there is no issue that the corporate respondent will not take responsibility for her actions. I do not believe 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 Applications. As there is no compelling reason to continue the proceedings as against Ms. Freitag, she is removed as a personal respondent.
19I have found that all four personal respondents should be removed from this Application and the style of cause will be amended accordingly.
Dated at Toronto, this 1st day of February, 2010.
“Signed by”
Judith Hinchman
Member