HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Dana-Ann Chalifoux
Applicant
-and-
Achievement House Inc.
Respondent
DECISION
Adjudicator: Ena Chadha
Indexed as: Chalifoux v. Achievement House
1The applicant filed an Application on May 31, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of her sex.
BACKGROUND
2On March 11, 2011, a representative of the corporate respondent, the former Director of the organization, wrote to the Tribunal and advised that the corporate respondent closed as of November 2010 and no longer exits. The Tribunal subsequently confirmed that the telephone number for the corporate respondent is no longer in service.
3By way of Case Assessment Direction dated April 11, 2011, the Tribunal required the representative of the corporate respondent to provide updated information about the status of the corporate respondent, as well as to indicate whether or not the corporate respondent has or had a Board of Directors. This Case Assessment Direction was returned to the Tribunal as undeliverable.
4In response to the April 11, 2011 Case Assessment Direction, the applicant wrote to the Tribunal, copied to the representative of the corporate respondent, advising that, notwithstanding the fact that the corporate respondent no longer exists, she wished to proceed with the Application and that she believed the former Director of the corporate respondent is the appropriate individual to respond to the Application. The applicant provided the former Director’s contact information.
5By way of Case Assessment dated May 2, 2011, the Tribunal directed the applicant, respondent and former Director to file written submissions regarding the following issues:
If the corporate respondent no longer exists, is it moot to proceed against this organization?
Does the applicant wish to proceed as against the former Director of the corporate respondent as an individual respondent and, if so, is it appropriate to add the former Director as an individual respondent?
6The applicant emailed the Tribunal stating that she believed that, even though the corporate respondent no longer exists, the Tribunal should continue with the Application. The applicant further stated that she would like to proceed against the former Director as an individual respondent and that she thought it was appropriate to add the former Director.
7By way of Case Assessment Direction dated June 2, 2011, the Tribunal directed the corporate respondent and the former Director of the corporate respondent to indicate whether they wished to participate in the oral or written hearing of the issues.
8No submissions were received from the corporate respondent or the former Director in response to the May and June Case Assessment Directions. The applicant subsequently confirmed that she did not wish to make oral submissions with respect to the above-noted issues.
DECISION
9The Application was only filed against the corporate respondent. The applicant acknowledges that the corporate respondent is not in operation and no longer exists. There does not appear to be any way to contact the corporate respondent.
10Rule 6.6(b) of the Tribunal’s Rules of Procedure provides that the Tribunal will not deal with an application in respect of a respondent who cannot be contacted at the contact information provided by the applicant. No one on behalf of the corporate respondent has communicated or corresponded with the Tribunal in regards to any of the Case Assessment Directions and one Case Assessment Direction was returned in the mail. As such, the Tribunal cannot be satisfied that the corporate respondent and proposed personal respondent have received the Case Assessment Directions. The applicant has been unable to satisfy the Tribunal that the contact information provided was valid and permitted effective notice to the corporate respondent and proposed personal respondent.
11As there is no existing respondent to the Application, the Tribunal cannot proceed with the Application. To proceed with the Application would require the Tribunal to determine whether a non-existent entity engaged in an alleged Code violation and, if so, any remedial order would be moot as the remedy would be largely, if not entirely, unavailable.
12In addition, based on the principles with respect to naming personal respondents, the Tribunal will not add the former Director as a party to the Application. The applicant has not established that there is a compelling reason to add the former Director as a personal respondent. The applicant did not initially proceed against the former Director and the allegations about the former Director are in relation to decisions and discussions made solely in her managerial capacity.
13The Tribunal’s test for adding respondents has been articulated at paragraph 12 in the Tribunal’s Decision in Smyth v. Toronto Police Services Board, 2009 HRTO 1513:
When determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) 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?
- Would it be fair, in all the circumstances, to add the proposed respondent?
14The Tribunal has removed or refused to add personal respondents when the alleged actions and omissions of the personal respondent were carried out strictly in their capacity as officers or employees of the corporate respondent and their personal conduct was not in issue. See for example, Sigrist and Carson v. London Catholic District School Board, 2008 HRTO 14; Persaud v. Toronto District School Board, 2008 HRTO 31; and Lawrence v. Toronto Police Services Board, 2010 HRTO 161. In conclusion, this is not an appropriate case to add the proposed personal respondent.
15In accordance with Rule 6, the Tribunal dismisses the Application.
Dated at Toronto, this 18th day of July, 2011.
”signed by”_________
Ena Chadha
Vice-chair