John Harvey v. Killam Properties Inc., 2010 HRTO 2510

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Harvey

Applicant

-and-

Killam Properties Inc.

Respondent

INTERIM DECISION

Adjudicator: Michelle Flaherty

Date: December 17, 2010

Citation: 2010 HRTO 2510

Indexed as: Harvey v. Killam Properties

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), raises allegations of reprisal or threat of reprisal in the provision of goods, facilities or services.

2The applicant states that, for a number of years, he and his family have been camping at the corporate respondent’s campground. He alleges that he was denied an opportunity to purchase a trailer in the campground and that the respondent never provided a reason for the denial. The applicant states that when he advised the respondent that he intended to file an application under the Code, the respondents took the position that he and is family were no longer welcome at the campground.

3The respondents have filed a Response which denies reprising against the applicant and explains that the request to become seasonal campers was denied because of previous incidents in which the applicant had allegedly failed to appropriately supervise his child and had left his dog unattended at the campsite. The respondents state that the applicant was barred from the park because of his aggressive and threatening behaviour, not because he asserted a right under the Code.

4A mediation has been scheduled for January 10, 2011, on the consent of both parties.

5The respondents have filed the following Requests for Orders During Proceedings (“Requests”):

1. a Request seeking the early dismissal of the Application because it does not raise a prima facie violation of the Code and because it is not within the Tribunal’s jurisdiction (power) to decide.

• The applicant objects to this Request and asks that the matter proceed to mediation;

2. a Request seeking the removal of the personal respondent as a party in the proceeding.

• The applicant objects to this Request; and,

3. a Request that the Tribunal determine the other Requests filed by the respondent in advance of the mediation.

• The applicant has not yet responded to this Request and the time for doing so under the Rules has not yet elapsed.

In the circumstances, it is appropriate to consider the Requests in advance of the mediation. Although the applicant has not had an opportunity to respond to the Request to have the matters dealt with before the mediation, he has responded to the substantive issues raised in the Requests.

REQUEST TO DISMISS

The Tribunal’s jurisdiction

6The respondents argue that the allegations contained in the Application, even if believed, would not establish a violation of the Code. They also argue that the Tribunal has no jurisdiction over the Application because, while it contains allegations of reprisal, it does not relate to a prohibited ground of discrimination. Indeed, the applicant’s only allegation is that the respondents reprised against him and barred him from accessing the campground when he indicated he was going to file an Application.

7The relevant provision of the Code is section 8, which states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

8The Tribunal has held that individuals claiming reprisal under section 8 need not prove that their substantive rights under the Code have, in fact, been infringed. See Noble v. York University, 2010 HRTO 878. Rather, section 8 can be engaged when an alleged action or threat is made in retaliation for the applicant having claimed or attempted to claim a right under the Code. To establish a violation of section 8, it is not strictly necessary that the applicant also establish a violation of his substantive rights to be free from discrimination under the Code: Noble, supra.

9Based on the above principles, I find that the Application raises allegations that engage the Code and that are within the Tribunal’s power to decide. Accordingly, the respondents’ request to dismiss the Application because it falls outside the Tribunal’s jurisdiction is dismissed.

Prima facie case

10The respondents also argue that the applicant has not established a prima facie case of discrimination and that the Application should be dismissed on this basis.

11To establish a prima facie case, the applicant must show that the allegations he has made (if they are proven) could form the basis of a finding of discrimination. The applicant bears the onus of establishing a prima facie case of discrimination. If the applicant establishes a prima facie case, the onus shifts to the respondent to demonstrate on a balance of probabilities that the applicant's allegations do not amount to discrimination. However, if the applicant cannot establish a prima facie case of discrimination, the application will generally be dismissed and the respondent will not be required to address the allegations.

12Section 43(2) of the Code provides that, where an application is within the Tribunal’s jurisdiction, the Tribunal must provide the parties with an opportunity to make oral submissions before making a final determination of the Application. Thus, in order to determine the respondents’ request to dismiss on the basis of no prima facie case, the Tribunal would be required to offer the parties an opportunity to make oral submissions and, perhaps, to introduce evidence.

13I have considered whether an oral hearing on the issue of a prima facie case would be appropriate. In my view, it would be difficult to effectively determine the issue on a preliminary basis and the most fair, just and expeditious manner of addressing this matter is to schedule a full hearing on the merits.

14The respondents’ request for dismissal is denied at this stage of the proceeding. This Interim Decision is without prejudice to the respondents’ ability to request the dismissal of the Application at the hearing because the applicant has not established a prima facie case.

REQUEST TO REMOVE THE INDIVIDUAL RESPONDENT

15The Tribunal set out the general approach to this issue in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14. The Tribunal wrote at para. 42:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

16In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:

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?

17The corporate respondent states that the personal respondent was acting within the normal course of her employment. While the respondents deny the allegations of discrimination, the corporate respondent acknowledges liability for the actions of the personal respondent should the Tribunal find in favour of the applicant.

18In my view, in light of the corporate respondent’s position, it is appropriate to remove the personal respondent in this matter. There is no apparent prejudice to the applicant if she is removed.

19I order that the personal respondent be removed. The style of cause is amended accordingly.

NEXT STEPS

20Mediation is a voluntary part of the Tribunal’s process. It takes place only where all parties wish to participate.

21Within three days of this Interim Decision, the parties must advise each other and the Tribunal whether they wish to go ahead with the January 10, 2011 mediation date.

22In the event that one or both of the parties does not wish to mediate, the Registrar will cancel the mediation and schedule a one-day hearing to address the merits of the Application.

23I am not seized of this matter.