Christine Brady v. Durham Rapid Taxi Inc., 2010 HRTO 788

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Christine Brady

Applicant

-and-

Durham Rapid Taxi Inc., Ravinder Bhardwaj, Ashoak Sharma, Ravi Sarda, Surinder Bharadwaj, Amir Jamal, and Zeeshan Umar

Respondents

Interim decision

Adjudicator: Sheri D. Price

Date: April 9, 2010

Citation: 2010 HRTO 788

Indexed as: Brady v. Durham Rapid Taxi

1The Application in this matter was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), on May 5, 2009. The applicant alleges discrimination and harassment on the basis of sex and reprisal contrary to the Code.

2The purpose of this Interim Decision is to determine the applicant’s Request to add parties to the Application and the Request of certain personal respondents to be removed as parties. The decision also determines the Request of certain of the respondents to amend their Response and addresses the timelines for the filing of Responses and other documents by those added as parties herein.

3The hearing is scheduled for June 15, 16 and 17, 2010.

The Applicant’s Request to add Parties

4On November 13, 2009, the applicant filed a Request for Order during Proceedings (Form 10) (“the Request”) in which she requests that Amir Jamal, Zeeshan Umar and Surinder P. Bharadwaj, an owner of the corporate respondent, be added as personal respondents to the Application.

5In the original Application, the applicant indicated that she would seek to have these three individuals added as personal respondents, upon receipt of their full legal names and contact information. The applicant did not obtain that information until February 2010. The proposed respondents have since been delivered a copy of the applicant’s November 2009 Request and had an opportunity to respond.

6The applicant alleges Mr. Umar and Mr. Jamal were drivers with the corporate respondent when the applicant worked there as a dispatcher. The applicant alleges that Mr. Jamal made numerous comments to her which degraded her on the basis of sex and which constituted sexual harassment under the Code. Among other things, the applicant alleges that while she was employed by the corporate respondent, Mr. Umar sexually harassed her by touching her breasts. Surinder Bharadwaj was and/or is an owner of the corporate respondent. The applicant alleges that she raised her concerns about Mr. Jamal with Surinder Bharadwaj, but he did nothing to address her concerns and he should therefore be added as a personal respondent as well.

7The applicant submits that in determining whether to grant a request to add a party, the Tribunal should consider whether there are facts alleged that, if proven, could support a finding that the proposed respondent violated the applicant’s rights under the Code: Marchese v. Fortinos, 2009 HRTO 25. The applicant submits that the facts in the Application, if proven, support a finding that Mr. Jamal, Mr. Umar, and Mr. Bharadwaj harassed the applicant and/or discriminated against her on the basis of sex, contrary to the Code. Thus, the applicant submits, they are properly added as personal respondents to the Application.

Respondents’ Request to Remove Owners of the Corporate Respondent as Parties

8The respondents Durham Rapid Taxi Inc., Ravinder Bahrdwaj, Ashoak Sharma and Ravi Sarda request that the individual owners of the corporate respondent, Ravinder Bhardwaj, Ashoak Sharma, and Ravi Sarda, be removed as parties to the Application. They also ask that Surinder Bharadwaj, the fourth owner of the corporate respondent, not be added as a party to the Application. These respondents submit that the proper respondent is the corporate respondent and that the corporate respondent is liable for the personal respondents’ actions by virtue of section 46.3 of the Code, which states:

46.3(1) For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

They also rely upon the Tribunal’s Information Bulletin which states that it is not necessary to name individuals as personal respondents where they were acting in the course of their regular duties.

Zeeshan Umar

9Mr. Umar opposes the Request that he be added as a party to the Application and denies the allegations made against him. Mr. Umar relies on the Tribunal’s decisions in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, and Persaud v. Toronto District School Board, 2008 HRTO 31, for the proposition that he should not be added as a party because the corporate respondent can easily remedy any infringements of the Code which are found to have occurred. He submits that his conduct is not a central issue in the Application. He also submits that allegations of sexual assault are under the jurisdiction of the criminal courts and not the Tribunal.

Amir Jamal

10Mr. Jamal did not file a response to the Request that he be added as a party to the Application.

ANALYSIS AND DECISION

11It is true that the Tribunal has expressed concern about the unnecessary naming of personal respondents in applications where there is an organizational or corporate respondent who is also liable for the alleged infringement of the applicant’s rights and is in a position to satisfy any remedies ordered in the case: Sigrist and Carson, supra.

12In this case, however, there is a sufficiently compelling reason to add the three additional proposed respondents.

13Mr. Jamal is alleged to have made numerous comments which demeaned the applicant on the basis of her sex, and Mr. Umar is alleged to have touched the applicant in a sexual manner. These are allegations which, if proven, could support a finding that the proposed personal respondents infringed the applicant’s rights under the Code.

14If Mr. Umar and/or Mr. Jamal were found to have violated the applicant’s rights under the Code, the only remedy for the applicant in respect of such violation might be an order against them personally. This is because section 46.3(1) of the Code, which deems employers liable for the actions of their employees carried out in the course of employment, does not apply to the sections in the Code which deal specifically with harassment, including s. 7(2), which states:

Every person who is an employee has a right to freedom from harassment in the workplace because of sex by his or her employer or agent of the employer or by another employee.

15Similarly, Mr. Bharadwaj, a director and owner of the corporate respondent, is alleged to have violated the applicant’s right under s. 7(2) of the Code (and possibly other sections) to be free from harassment in the workplace by ignoring or dismissing the applicant’s complaints about Mr. Jamal. Contrary to the respondents’ submissions, s. 46.3 of the Code does not deem the corporate respondent liable for Mr. Bharadwaj’s infringement of the applicant’s rights under s. 7(2) of the Code, if such infringement is proven. I am satisfied that it is appropriate to add Mr. Bharadwaj as a personal respondent to the Application.

16Finally, I note that Mr. Jamal, Mr. Umar, and Surinder Bharadwaj were named as proposed respondents in the original Application. The only reason that they were not initially served with the Application by the Tribunal was because the applicant did not have contact information for them or know their full legal names at the time the Application was filed. For this reason, it may be more appropriate to consider the applicant’s Request as a request that the Tribunal deliver the Application to a named respondent, rather than a request to add a party during the proceedings.

17With respect to Mr. Umar’s submission that the criminal courts have jurisdiction over this matter, the fact that the subject matter of an application may also give rise to issues under criminal law does not deprive the Tribunal of jurisdiction under the Code.

18With respect to the respondents’ request to remove Ravinder Bhardwaj, Ashoak Sharma and Ravi Sarda as parties to the Application, the test for removing personal respondents was set down in Persaud, supra. Among other things, the test considers whether there is an institutional respondent which had deemed or vicarious liability for the conduct of the personal respondent, and which is able to satisfy any remedy ordered. In this case, the personal respondents have not satisfied the Tribunal or indeed even submitted that the corporate respondent is able to satisfy any remedy which may be ordered in this case.

19And again, s. 46.3, which deems an employer liable for the actions of officers, officials, employees and agents, does not apply with respect to those sections of the Code which deal with harassment. Accordingly, it is possible that even if the corporate respondent were in a position to satisfy any remedies ordered in this case, it might not be liable for the actions of the personal respondents, if they are found to have infringed the applicant’s rights under s. 7(2) of the Code.

20For the above reasons, the Request to add Amir Jamal, Zeeshan Umar and Surinder Bharadwaj as personal respondents is granted. The Request to remove Ravinder Bhardwaj, Ashoak Sharma, and Ravi Sarda is denied. The style of cause is amended accordingly.

21The Tribunal will deliver the Application to the newly added personal respondents at the addresses provided on the Form 23’s showing the delivery of the applicant’s November 2009 Request to them.

Request to amend response

22In March 2010, the respondents Durham Rapid Taxi Inc., Ravinder Bhardwaj, Ashoak Sharma and Ravi Sarda filed a Request to amend their Response in this matter. The proposed amended Response was filed with the Request.

23The reasons for the Request to amend the Response are that the respondents did not have counsel at the time they prepared and filed their original Response and the original Response did not fully respond to all of the issues in the Application.

24The applicant has not opposed the respondents’ Request to amend their Response.

25The respondents indicated as early as February 2010 that they intended to seek the Tribunal’s permission to file an amended Response. The allegations against the respondents are serious. The hearing is more than two months away. I cannot see how anyone would be prejudiced by granting the respondents’ request to amend their Response at this stage. There should be ample time for all parties to prepare for the hearing and to address the issues raised in the Application and Responses. It is more fair and just to the respondents to allow them to put forward a full defence to the allegations against them. The request to amend the Response is granted.

26The respondents are directed to immediately deliver a copy of the original and amended Responses to all other parties to the Application, if they have not already done so, and to file Form 23’s to the Tribunal showing that all other parties to the Application have been served with these documents.

Directions regarding time limits for filing of pleadings and exchange of documents

27In order to ensure the fair, just and expeditious conduct of the hearing in this matter in June 2010, I make the following orders:

Responses from Amir Jamal, Zeeshan Umar and Surinder Bharadwaj and Applicant’s Reply to such Responses

28The personal respondents Amir Jamal, Zeeshan Umar and Surinder Bharadwaj have already had notice of the Application and the request to add them as parties for about two months. The hearing is scheduled to commence in approximately 10 weeks. The respondents Amir Jamal, Zeeshan Umar and Surinder Bharadwaj are directed to file their Responses to the application within 28 days of the date of this Interim Decision, that is, by May 7, 2010. The time limit for filing the Responses is abridged accordingly.

29The applicant is directed to file her Replies, if any, to the Responses, within seven days of the date of receiving such Responses.

Documents and Witness Statements

30The newly added respondents, Mr. Bharadwaj, Mr. Jamal and Mr. Umar, are directed to send to each other party a copy of all arguably relevant documents in their possession not later than three weeks before the hearing, which is May 25, 2010. They are also directed to send to each other and to file with the Tribunal a copy of the documents they intend to rely upon and brief will-say statements setting out the intended evidence of each of their witnesses not later than three weeks before the hearing, which is May 25, 2010. The time limits in Rules 16 and 17 of the Tribunal’s Rules of Procedure are abridged accordingly.

31All of the other parties to this matter were to have exchanged arguably relevant documents, and exchanged and filed with the Tribunal the documents they intend to rely upon as well as will-say statements for their witnesses, some time ago. If they have not already done so, there are hereby directed to comply with the requirements of section 16 and 17 of the Tribunal’s Rules of Procedure immediately.