Wozniczka v. The Polish Mutual Benefit Society, 2013 HRTO 1206

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Izabela Wozniczka

Applicant

-and-

The Polish Mutual Benefit Society and Ewa Gulbinowicz

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: July 10, 2013

Citation: 2013 HRTO 1206

Indexed as: Wozniczka v. The Polish Mutual Benefit Society

WRITTEN SUBMISSIONS

Izabela Wozniczka, Applicant

Jamie McGinnis, Counsel

The Polish Mutual Benefit Society, Respondent

Mark Mikulasik, Counsel

Ewa Gulbinowicz, Respondent

Self-represented

1This is an Application filed on October 5, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to contracts because of sex and association with a person identified by a prohibited ground of discrimination. This Interim Decision addresses two Requests for an Order During Proceedings filed by the individual respondent.

2The applicant entered into a contract with the organizational respondent to make and sell perogies on the organizational respondent's premises, the term of which was intended to run from March 1, 2011 to December 31, 2011. According to the organizational respondent, the individual respondent was the organizational respondent's president from approximately January 2011 to December 2011 and was a member of the organizational respondent from May 6, 2007 to October 15, 2012. The applicant alleges that she experienced discrimination and harassment while performing her contractual obligations because of her need to breastfeed her child and because her husband is a man of Asian descent. The applicant attributes the bulk of this unwanted behaviour to the individual respondent. The applicant also alleges that the respondents committed reprisals against her after she filed the Application, consisting of two e-mail messages from the individual respondent to the applicant and to her father-in-law in which the applicant was accused of criminal behaviour and threatened to report the applicant to the police. The Tribunal granted the applicant's request to add these allegations to the Application in an earlier Interim Decision, 2013 HRTO 51.

THE REQUEST TO AMEND

3The respondents were initially represented by the same representative who filed a brief Response on their behalf. That representative subsequently ceased to act for either respondent and the organizational respondent retained counsel, who filed a Response on its behalf. The individual respondent filed a Request for an Order During Proceedings on May 31, 2013 seeking to amend and resubmit her Response (the "Request to Amend"). The individual respondent included a draft of the amended Response, which provides her detailed response to the Application for the first time. On June 21, 2013, the applicant filed a Response to a Request for an Order in which she consented to the Request to Amend and filed a Reply to the amended Response. The organizational respondent has not filed a response to the Request to Amend and the time for doing so has expired.

DECISION

4In determining requests to amend pleadings under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent. See Ewing v. Thunder Bay Police Services Board, 2011 HRTO 1066.

5The Request to Amend is granted. The individual respondent made the Request at an early stage in the proceedings, once she understood that she was no longer represented. The Response filed by her former representative was perfunctory and provided little detail regarding the individual respondent's position. In the circumstances, it would be unfair not to allow her to amend her Response to properly reflect her position regarding the allegations made against her. The other parties have identified no prejudice to them if the Tribunal grants the Request to Amend.

THE REQUEST TO REMOVE THE INDIVIDUAL RESPONDENT

6On April 5, 2013, the individual respondent filed a Request for an Order During Proceedings seeking an order removing herself as a respondent to the Application (the "Request to Remove"). The individual respondent submitted that she was not a member of the organizational respondent's board of directors when the incidents in question occurred. The applicant further submitted that she should not be named as a respondent when none of the board members, or regular members, have been named in the dispute.

7Both the applicant and the organizational respondent filed Responses opposing the request. The applicant submitted that the individual respondent was in fact the president of the organizational respondent's board of directors when the contract between the organizational respondent and the applicant was formed, and signed the contract on behalf of the organizational respondent. The applicant submitted that the individual respondent harassed the applicant regarding her need to breastfeed and should be held jointly and severally liable for her conduct. The organizational respondent submitted that the individual respondent was no longer a member of and held no position with the organizational respondent when she sent the messages to the applicant that the applicant asserts amounted to reprisals. Consequently, the organizational respondent submitted that it is not vicariously liable for the alleged reprisals. Both the organizational respondent and applicant submitted that the organizational respondent would be prejudiced if the individual respondent was removed from the Application, although neither specified what that prejudice would be.

DECISION

8For the following reasons, the Request to Remove is denied. Rule 1.7(b) of the Tribunal's Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at paragraph 42, the Tribunal set out the general principles that apply to this issue:

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.

9The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at paragraph 5:

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

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?

In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the complaint.

10The organizational respondent's position is that the individual respondent is solely responsible for the alleged reprisals identified by the applicant. Accordingly, whether the organizational respondent is vicariously liable for any reprisal is very much in question. Assuming the organizational respondent's assessment is correct, the applicant could be left without a remedy if the Tribunal removes the individual respondent and later finds that she committed a reprisal against the applicant. In my view, this amounts to potential prejudice to the applicant, as well as a compelling reason to continue the proceeding against the individual respondent.

ORDER

11The Tribunal orders as follows:

1. The individual respondent's Request to Amend is granted; and,

2. The individual respondent's Request to be removed from the Application is denied.

12I am not seized of this matter.