Albina Daragjati v. Helias Enterprises Ltd. o/a Comfort Inn Fallsview and Oxana Panchyshyn, 2010 HRTO 2377

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Albina Daragjati

Applicant

-and-

Helias Enterprises Ltd. o/a Comfort Inn Fallsview and Oxana Panchyshyn

Respondents

interiM DECISION

Adjudicator: Judith Keene

Date: November 30, 2010

Citation: 2010 HRTO 2377

Indexed as: Daragjati v. Helias Enterprises

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), on October 16, 2009, alleging discrimination in employment on the ground of disability. The Application identified three personal respondents as well as the corporate respondent.

2On October 5, 2010, the respondents filed a Request for an Order During Proceedings (“Request”) asking that the Tribunal remove the personal respondents from the Application.

3The applicant in response to the Request consented to the removal of two personal respondents, Louis Dritsacos and Toula Dritsacos. However, the applicant opposed the removal of Oxana Panchyshyn, whom she alleges harassed her, stating that a representation made by Ms Panchyshyn is a central issue in the Application, and that the applicant will be seeking a specific remedy against Ms Panchyshyn if she is successful at the hearing.

4Germane to this issue is a document filed by the respondents, which appears to be a note from Ms Panchyshyn, who is identified as a bookkeeper employed by the corporate respondent, to the Workers’ Safety and Insurance Board, in which she characterizes a claim by the applicant as a “scam”.

5In its Request, the respondents state that Ms Panchyshyn is “solely an employee of…Helias Enterprises…and as such responsibility for her actions performed in the ordinary course of her employment are the sole responsibility of her employer”. However, in their Response to the Application, the respondents, while admitting that Ms Panchyshyn “sent a statement of her personal opinion to WSIB” adds that “[t]he other Respondents did not participate or give direction with respect to said personal opinion”.

6In a number of decisions in which a corporate respondent has accepted responsibility for the actions of personal respondents, the Tribunal has removed personal respondents. However, it appears that there is some ambiguity with respect to the corporate respondent’s position in this case. In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal noted that one of the considerations in deciding whether to remove respondents is whether there is 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. In this case I think there is an issue, and this would be better resolved by the Tribunal member in charge of hearing the Application.

7The Tribunal therefore orders that Louis Dritsacos and Toula Dritsacos be removed as respondents to the Application. The style of cause shall be amended accordingly.

8I am not seized of this matter.