S.R. v. Drewlo Holdings Inc., 2012 HRTO 1647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.R. Applicant

-and-

Drewlo Holdings Inc. Respondent

A N D B E T W E E N:

S.R. on behalf of A.F. Applicant

-and-

Drewlo Holdings Inc. Respondent

A N D B E T W E E N:

S.R. on behalf of E.R. Applicant

-and-

Drewlo Holdings Inc. Respondent

A N D B E T W E E N:

S.R. Applicant

-and-

Drewlo Holdings Inc. Respondent

Interim Decision

Adjudicator: Ena Chadha Date: August 28, 2012 Citation: 2012 HRTO 1647 Indexed as: S.R. v. Drewlo Holdings

WRITTEN SUBMISSIONS

S.R., Applicant Self-represented

Drewlo Holdings Inc., Respondent Kristin Ley, Counsel

1Three Applications (2011-09963-I; 2011-10171-I and 2011-10170-I) were originally filed by S.R. on behalf of himself and his family on September 30, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in housing on the basis of race, colour, and disability. These three Applications pertain to the same alleged events on September 27, 2011. The Applications allege that when the applicants requested assistance to enter to the pool area, a representative of the corporate respondent responded with discriminatory comments.

2On May 31, 2012, the applicant S.R. filed another Application alleging discrimination in housing on the basis of race, colour, and disability and reprisal. The applicant alleges that on October 5, 2011, representatives of the corporate respondent made discriminatory comments towards him and refused to accept rental payments, all as reprisal for the previous Applications.

3The respondents filed a Response on July 26, 2012, denying the allegations of discrimination and reprisal. The respondents ask that the Tribunal dismiss the Application as an abuse of process being duplicative of the previous Applications. The respondents also request that the Tribunal remove the personal respondent as she was acting in her capacity as an employee of the corporate respondent.

4The applicant filed a Reply on August 14, 2012, and requests that the present Application be deferred until resolution of the other matters.

Request to Dismiss

5The respondents submit that this Application is duplicative of the original Applications and therefore should be dismissed as an abuse of process. I disagree. The events alleged in the current Application are subsequent to the events alleged in the original three Applications and appear to be framed as reprisal allegations. I find that the factual and legal issues are sufficiently distinct and not duplicative and, therefore, the respondents’ request to dismiss is denied.

Request to Remove Personal Respondent

6The respondents seek the removal of the personal respondent.

7The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras. 4-5 in deciding whether to remove an individual respondent from a proceeding:

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?

8I agree with the respondents that it appears that personal respondent Donna Vogel was acting in the course of her employment role for the corporate respondent and, as such, it is inappropriate to continue the Application as against her as a personal respondent. In my view, considering all the circumstances, it is not necessary to involve Donna Vogel as a personal respondent in order to have a fair, just and expeditious resolution of the merits of the Application.

9I accept the respondents’ submissions that the Application in no way references or impugns her personal conduct and that the corporate respondent will be vicariously liable for the alleged conduct of Ms. Vogel. As such, there does not appear to be any compelling reason to continue the Application as against the personal respondent.

Request to Defer

10The applicant requests deferral of the current Application.

11Deferral of an application seeks to ensure that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. I find no basis to defer as there is no risk that disposition of the original allegations will determine or unfairly impact the hearing of the allegations in the current Application.

12By way of Interim Decision 2012 HRTO 1410, the original three Applications were consolidated.

13Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.

14The hearing of the original Applications is scheduled for next spring. I find that the applicant’s request to defer should be refused and that the Tribunal should consolidate this Application with the original Applications.

15Given the common parties, facts and issues present in all four Applications, the Tribunal directs that this current reprisal Application be consolidated with the original three Applications.

Orders

16The respondents’ request to dismiss is refused. The respondents’ request to remove the personal respondent is granted and the style of cause will be amended. The applicant’s request to defer is denied. The current Application is consolidated with the three original Applications which are scheduled for a hearing commencing on April 4, 2013.

17I am not seized.