Dennison v. Sarafian, 2011 HRTO 1132

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barry Dennison

Applicant

-and-

Edward Sarafian and Garrett Sarafian

Respondents

Interim Decision

Adjudicator: David Muir

Date: June 13, 2011

Citation: 2011 HRTO 1132

Indexed as: Dennison v. Sarafian

1This is an Application filed pursuant to section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). This interim decision deals with a Request for Order During Proceeding (“Request”) filed by the applicant seeking an Order adding a party respondent, Garrett Sarafian, to the Application.

2The applicant makes his request for essentially two reasons. First, the applicant states that the proposed respondent was involved in the events surrounding the alleged violation of the Code and was named as a respondent in the complaint he had filed with the Ontario Human Rights Commission (the “Commission”). The applicant states that the proposed respondent was not included in this Application inadvertently. Second, the applicant also states that because the respondent is ill he wants to ensure that there is a respondent to answer to the allegations in the Application at the hearing, which will take place in November.

3The respondent and the proposed respondent have both responded to the Request and both are opposed. However, neither the respondent nor the proposed respondent indicated any prejudice that would occur if the proposed respondent was added.

4The Application concerns an allegation by the applicant that he was not accepted as a tenant of a rental accommodation by the respondent, contrary to the Code. The applicant alleges that the apartment was not rented to him for reasons related to his receipt of social assistance, disability and sexual orientation.

5The proposed new respondent is referred to in the human rights complaint underlying this Application on two occasions. First, the applicant alleges the following statement was made by the respondent as follows:

My wife and son (the proposed respondent is the respondent’s son) are mad at me for renting to people on welfare who are nothing but trouble…

6Later in the narrative of the complaint, after the respondent presumably indicates to the proposed respondent that he is considering renting to the applicant, it is alleged that the proposed respondent stated “but I’ve already rented it”, to which the respondent replied “he’s not going to have a roommate and I rented to him first. This is my building and you work for me, lets remember that”. The applicant alleges that an argument ensued between the two, which ended by in effect accepting the respondent’s reluctance to rent the apartment to him.

7In addition to the references in the complaint, the applicant now states that the proposed respondent was present at the building minutes after the applicant had been shown the unit by the respondent and spoke to the two of them about it. The applicant does not say what was said. Finally, the applicant states that in conversation with a lawyer who was representing him at the time, the proposed respondent made comments to the lawyer that indicated that he would not rent the unit for similar reasons that are said to have informed the respondent’s decision.

8The proposed respondent clearly is an important witness in this matter. The question becomes whether he is a proper respondent and is it appropriate that he be added at this stage. I find that it is fair, just and expeditious to add the proposed respondent, Garrett Sarafian, as a respondent in this Application. My reasons for this conclusion follow.

9I note at the outset the fact that the respondent is ill and the applicant speculates may not be with us for the hearing, in the absence of any other reason to do so, is not a consideration in my analysis.

10In Smyth v. Toronto Police Services, 2009 HRTO 1513 the Tribunal stated that when determining a request to add a respondent, the following three questions would be considered:

a. Are there allegations made that could support a finding that the proposed respondent violated the Code?

b. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

c. Would it be fair, in all the circumstances, to add the proposed respondent?

11The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. Since there is no organizational respondent in this case, the second stage is not applicable. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.

12With respect to the third stage, significantly, this is not a request to add a completely new respondent, years after the events in question. Although years have passed since the events described in the complaint, the respondent, Garrett Sarafian, was named in the initial human rights complaint as a respondent. The complaint was not amended by the Commission to have him removed. Accordingly, he was a respondent to the complaint until it was abandoned at the Commission and commenced at the Tribunal in June 2009. I also note that the applicant’s claim that he inadvertently did not include Garrett Sarafian in the TR-1 Form commencing this Application is not unusual. It is also significant that Garrett Sarafian does not claim any actual prejudice in being added to the Application at this stage.

13The question becomes whether or not there are allegations made by the applicant that would support a finding that the Code had been violated by the proposed respondent. I find that there are.

14There are allegations made in the complaint and in the particulars that the applicant has since filed implicating Garrett Sarafian in the decision making process related to the rental of the apartment to the applicant. A important question in determining ultimate responsibility for a Code breach, if any, is who had effective decision making as between the respondents. The respondent Edward Sarafian states that it was his business and he made the decisions, yet at the same time states that the reason why the apartment was not rented to the applicant was that his son, Garrett Sarafian, had rented it to someone else the day before the applicant was shown the unit. I find that there are sufficient particulars of allegations made by the applicant that would support the conclusion that Garrett Sarafian may have played a role in the decision not to rent the apartment to the applicant.

15Accordingly, I order that Garrett Sarafian be added as a respondent to this Application and the style of cause be amended to include his name.

Other Matters:

16Although Garrett Sarafian appears to have received the Request for Order and other materials, as directed by the Tribunal, he has taken great exception to where the applicant has been delivering these materials. There does not appear to be any impropriety in that regard despite the respondents’ views. However, if the respondent Garrett Sarafian wishes to provide the applicant and the Tribunal with an alternative address for delivery of materials related to this Application he may do so, in writing, within 10 days of the date of this decision. Until such time as the respondent Garrett Sarafian advises otherwise, the Tribunal will communicate with Garrett Sarafian by delivery to his father Edward Sarafian. The applicant may do the same.

17The respondents are directed to comply with my prior directions to provide their available dates for a one day hearing in November 2011 within 10 days of the date of this decision.

18I am not seized of this case.