HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Farzaneh Ghasemi
Applicant
-and-
2261536 Ontario Inc., Swiss Chalet # 1215
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Ghasemi v. 2261536 Ontario Inc.
WRITTEN SUBMISSIONS
Farzaneh Ghasemi, Applicant
Alexandre Martel, Counsel
2261536 Ontario Inc., Swiss Chalet # 1215, Respondent
Kecia Podetz, Counsel
1This is an Application filed on June 21, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination with respect to employment because of race, ancestry, place of origin, ethnic origin and age. This Interim Decision addresses the respondent’s request to remove a named personal respondent, Hunter Turner, and to dismiss the Application for delay.
2The respondent filed its Requests for an Order During Proceedings (RFOPs) to remove the personal respondent and to dismiss the Application for delay on August 17, 2012. The applicant did not provide responses to these RFOPs within 14 days as required by the Tribunal’s Rules. As a result the Tribunal issued a Case Assessment Direction to the applicant on October 9, 2012 indicating that the applicant had commenced a legal proceeding before the Tribunal and that it is the Tribunal’s expectation that parties to an Application participate in the Tribunal’s process as required. The Tribunal directed the applicant to respond to the respondent’s RFOPs within 14 days failing which the Tribunal might dismiss her Application as abandoned.
3The applicant provided responses to both RFOPs on October 23, 2012 in which she indicated her interest in proceeding with her Application. The Tribunal will continue to process her Application
REQUEST TO REMOVE PERSONAL RESPONDENT
4Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to “add or remove a party”. In assessing the respondent’s request I have adopted the principles and considered the key factors for removing personal respondents that were enunciated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 and Persaud v. Toronto District School Board, 2008 HRTO 31. In Sigrist the Tribunal stated:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “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”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found. (para 42)
5In Persaud the Tribunal set out a non-exhaustive list of factors that help determine whether a personal respondent should be removed. These factors include:
If there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
If there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
Would any prejudice be caused to any party as a result of removing the personal respondent? (para 5)
6The respondent has addressed each of the factors outlined above. It submits that there is a corporate respondent that has been alleged to have discriminated against the applicant. It submits that the corporate respondent would be vicariously liable for the conduct of personal respondent whose decisions and actions in relation to the applicant were carried out in his capacity as general manager and an officer of the corporate respondent. It submits the corporate respondent can respond to or remedy any alleged Code infringements and that an award of damages against the personal respondent is unwarranted. It submits there are no compelling reasons to proceed against the personal respondent as his individual conduct is not central to the Application. It submits the removal of the personal respondent would not be prejudicial to the applicant.
7The applicant submits that the personal respondent should remain a named respondent as it is his actions that are central to the Application. It submits that the personal respondent is the directing mind of the corporate respondent and that he should be personally accountable for his actions.
8On my review of the submissions and the information before me, including the applicant’s allegations and requested remedies, I am of the view that the personal respondent should be removed from this proceeding. In my view there is no allegation relating to the personal respondent’s actions carried out as a manager for the corporate respondent that are likely to give rise to a finding that he personally violated the Code. I see no prejudice to the applicant’s ability to proceed with his Application and receive a remedy if an infringement of the Code is established. Hunter Turner is therefore removed as a respondent and the style of cause is amended accordingly.
REQUEST TO DISMISS FOR DELAY
9Section 34 of the Code allows applications alleging infringements of rights under the Code to be made within a one-year time limit. It also gives the Tribunal discretion to accept late applications in certain circumstances. Section 34 specifically states:
34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
10The respondent submits that the Application is untimely, that it was filed over one year and two months after the applicant’s employment with the respondent was terminated which was the last incident of alleged discrimination. The respondent submits that the explanations provided in the Application for this delay are misleading and/or vague and do not establish that the delay in filing the Application was incurred in good faith. The respondent submits that the applicant has not provided persuasive medical documentation to support her principal contention for why the Application was delayed and that the information she has provided falls short of the type of medical evidence that the Tribunal has determined is required to show a delay for medical reasons satisfies the requirements of section 34(2).
11The applicant submits that her medical condition and the efforts she has made to pursue her Application do demonstrate good faith and that she does meet the requirements of section 34(2).
12In order to satisfy the Tribunal that the delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
13In the circumstances of this Application, I find it appropriate that the Tribunal schedule a 2 hour teleconference hearing to hear the parties’ submissions and oral evidence, if required on the issue of:
Was the applicant’s delay in filing her Application incurred in good faith and without any substantial prejudice to a person affected by the delay?
14If either party wishes to file any documentation, including facts, material or case law, they are required to deliver such documentation to the other party and file it with the Tribunal no later than 14 days prior to the date of the conference call hearing.
15The Tribunal’s cases are found on www.canlii.org.
16I am not seized of this matter.
ORDER
1.The personal respondent, Hunter Turner, is removed as a respondent and the style of cause is amended accordingly
- A two hour teleconference hearing will be scheduled to determine whether the Application should be dismissed for delay
Dated at Toronto, this 30th day of October, 2012.
”signed by”
Eric Whist
Vice-chair