Traversy v. Erin District Lions Club Inc., 2011 HRTO 730

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mary Traversy Applicant

-and-

Erin District Lions Club Inc. and Derek Bloomfield Respondents

A N D B E T W E E N:

Sarah Traversy Applicant

-and-

Erin District Lions Club Inc. and Derek Bloomfield Respondents

INTERIM DECISION

Adjudicator: Ena Chadha Date: April 18, 2011 Citation: 2011 HRTO 730 Indexed as: Traversy v. Erin District Lions Club

WRITTEN SUBMISSIONS

Mary Traversy and Sarah Traversy, Applicants John Villella, Representative

Erin District Lions Club and Derek Bloomfield, Respondents Dawn Phillips Brown, Counsel

1These two Applications were filed under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19 as amended ("Code"), on April 16, 2010, alleging discrimination and reprisal with respect to services, goods and facilities on the basis of sex (gender). The applicants are sisters and both Applications are against the same respondents arising out of the same set of circumstances.

2The respondents filed their Responses on December 20, 2010. They requested that the Tribunal dismiss the Applications under section 45.1 of the Code, asserting that another proceeding, namely Tribunal file 2010-05577-I involving Mary Traversy, the applicant in Tribunal file 2010-05415-I, appropriately dealt with the substance of both the instant Applications.

3In an earlier Interim Decision, 2011 HRTO 525, the Tribunal refused the respondents' Request for early dismissal and set timelines for submissions with respect to an alleged conflict of interest and consolidation of the two Applications. The applicants have confirmed that they do not intend to pursue the alleged conflict of interest issue and all parties agree that the Applications should be consolidated.

4On March 22, 2011, the respondents filed a Request for Order During Proceedings. In this Request, the respondents maintain their request for early dismissal and seek production in relation to this request to dismiss. The respondents also request that the personal respondent be removed as a party to these proceedings. The applicants filed submissions in response to these requests on April 4, 2011.

Request to Remove Personal Respondent

5The respondents request that the Tribunal remove the individual named in the Applications as a personal respondent. The respondents submit that the only appropriate respondent in this Application is the corporate respondent.

6Rule 1.7(b) of the Tribunal's Rules affirms the Tribunal's power to "add or remove a party". In Persaud v. Toronto District School Board, 2008 HRTO 31 the Tribunal outlined a "non-exhaustive list of factors" that may be helpful in assessing whether a personal respondent should be removed including:

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 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?

7The respondents submit that all the factors outlined above support removal of the personal respondent. They note that the corporate respondent is alleged to be liable for the same conduct as the personal respondent and that the corporate respondent is best placed to respond to and remedy any alleged Code infringement. They maintain that the allegations against the personal respondent are made against him as a member and agent of the corporate respondent and that the personal respondent was acting at the direction of the corporate respondent. The respondents suggest that there are no compelling reasons for continuing the proceedings against the personal respondent.

8On my review of the submissions and the material before me, I am satisfied that the personal respondent should not be removed from this proceeding. While I appreciate that there is no issue with respect to the first and third factors, I am not certain, at this preliminary stage, whether or not the personal respondent was acting in an official capacity and on the direction of the corporate respondent.

9In their narrative, the applicants make detailed allegations against the personal respondent. The applicants clearly feel that personal respondent has a central role in their experiences of alleged discrimination. Given the nature of the allegations of discrimination and reprisal, I find there is a compelling basis to continue with the personal respondent as a named party in this proceeding. Tribunal jurisprudence has held that it is appropriate to continue the proceeding as against the personal respondent where it is the individual conduct of the personal respondent that is a central issue. See Lagana v. Saputo Dairy Products Canada, 2010 HRTO 155 and Bianca v. Maritime Travel, 2010 HRTO 1077.

10I appreciate that it is the respondents' position that the personal respondent was an agent of the organization. The question remains whether the comments and conduct of the personal respondent were appropriate performance as an agent, as alleged by the respondents, or part of some differential treatment and subsequent reprisal with respect to protected Code grounds, as alleged by the applicants. This is one of the primary issues in the case and, in these circumstances, it is my view that it would not be appropriate to remove the personal respondent at this preliminary stage.

Request to Dismiss and Production

11The respondents submit that they did not have time to pursue their section 45.1 Request to dismiss because the Tribunal rendered its March 16, 2011 Interim Decision prior to the respondents having an opportunity to seek production of, and make submissions with respect to, Application 2010-05577-I. In this regard, the respondents point out that they wrote to the Tribunal on March 1, 2011, indicating that they would take necessary steps to seek production in respect of Application 2010-05577-I.

12The Tribunal notes that, as of March 16, 2011, the respondents had not filed a Request for production and, as such, the Tribunal issued its Interim Decision based on the respondents' Requests as set out in their December 2010 Responses. The respondents have now filed a Request for Order During Proceedings seeking production of all documents and materials with respect to Application 2010-05577-I so that the respondents may pursue the section 45.1 issue and for the purposes of preventing any double recovery.

13The applicants oppose the Request for production and submit that Application 2010-05577-I is not relevant to the current Applications.

14Although the section 45.1 Request for dismissal has already been disposed of and refused by way of the previous Interim Decision, I accept the respondents' argument that some disclosure with respect to the issue of loss of income arising out of Application 2010-05577-I is arguably relevant to the current proceedings. I do not accept that the respondents are entitled to production of all the documents and disclosure of all details of Application 2010-05577-I. However, to the extent that any financial compensation was accorded with respect to loss of income, I agree that the respondents are entitled to this information in order to ensure that the applicant is not doubly compensated for the same heads of damages. Based on a review of the current Applications, it appears that the applicants are claiming relief from the respondents with respect to income loss.

15Given that the Applications indicate a remedial claim for loss of income compensation, it appears that the loss of income figures in relation to Application 2010-05577-I may be arguably relevant for purposes of mediation, as well as the issue of damages. As both parties have indicated they are amenable to participating in mediation, in these circumstances, the Tribunal considers that it is in the interests of fairness and expeditiousness that the applicants immediately advise whether or not they consent to disclosure of any payment made with respect to such loss of income damages from Application 2010-05577-I.

ORDER

16Within five days of the date of this Interim Decision, the applicants are directed to provide to the respondents, copied to the Tribunal, written confirmation of their position regarding disclosure of any loss of income payment arising out of Application 2010-05577-I.

17If the applicants do not agree to disclose loss of income payment from Application 2010-05577-I, the Tribunal will consider the parties' submissions, and may determine the issue based on the parties' written submissions, and/or may schedule future steps accordingly.

18If the applicants provide confirmation of disclosure, the Registrar will schedule these Applications for mediation. The Applications are consolidated and will proceed together.

19I am not seized.

Dated at Toronto, this 18th day of April, 2011.

"signed by"__________

Ena Chadha Vice-chair