HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Linda Whittaker
Applicant
-and-
Montrade Developments Ltd.,
Atlantis Real Estate Corporation and Eugene McCarthy
Respondents
A N D B E T W E E N:
David Whittaker
Applicant
-and-
Montrade Developments Ltd.,
Atlantis Real Estate Corporation and Eugene McCarthy
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Whittaker v. Montrade Developments Ltd.
WRITTEN SUBMISSIONS
Linda Whittaker and David Whittaker, Applicants
Grace Vaccarelli, Counsel
Montrade Developments Ltd., Atlantis Real Estate Corporation and Eugene McCarthy, Respondents
Eugene McCarthy, Representative
1These are two Applications filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses whether the Applications should be heard together and determines two Requests For Order During Proceedings, filed by the two corporate respondents in each Application, seeking the removal of various individuals named as respondents (“the Requests”).
Background
2The applicants are spouses. Each alleges discrimination in employment and housing on the basis of disability, marital status and association with a person identified by a prohibited ground. Each also alleges reprisal or threat of reprisal.
3The factual circumstances underlying each Application are the same. The applicants were employed as building superintendents and in this capacity resided in a building owned or operated by the corporate respondents. The applicants allege that Linda Whittaker became ill, and after a period of time, the corporate respondents considered her to have quit and thus effectively terminated her and shortly thereafter terminated David Whittaker. Among other things, the applicants allege that the respondents discriminated against them by harassing them, by terminating their employment, by failing to accommodate Linda Whittaker, by commencing eviction proceedings against them, by seizing their locker and personal property and by refusing to provide them with Records of Employment. The applicants seek a remedy of compensation in an identical amount equivalent to six months wages, compensation for six months’ rent and internet/cable and damages.
4The corporate respondents appear to be the owners and operators of the building where the applicants lived and were employed. The respondent Hannelore Kaeser is the president and director of the two corporate respondents. The respondent Eugene McCarthy is the vice president of the two corporate respondents. The respondent Chris Wong is an employee of the corporate respondents who is responsible for preparing payroll related matters including records of employment. The remaining respondents, Marlin McGee and Betty McGee, are employees hired to replace the applicants as superintendents following their terminations.
5The Applications proceeded together for purposes of mediation but were not resolved.
6By Case Assessment Direction dated June 10, 2013, the Tribunal sought submissions from the parties on whether the Tribunal should consolidate or hear the Applications together and any further submissions on the Requests seeking removal of the individual respondents.
7Submissions have been received from the parties.
Should the Applications be consolidated or heard together?
8The applicants submit that the Tribunal should hear the Applications together, citing, among other things, that there are common issues of fact and law, the witnesses will be the same and it is in the public interest to avoid the repetition of evidence that would be required if the matters were heard separately.
9The respondents oppose consolidation or hearing the Applications together. The respondents state that they have organized their files on an individual basis and to change the course of the proceedings now would present an undue burden to them. Further, the respondents state that they are concerned that the “joining” of the two will result in the applicants uniting their claims which can only benefit the applicants. The respondents submit that they will raise individual issues with respect to each Application and have prepared for this accordingly. If the respondents are unable to do this, they submit it will be unfair.
10Rule 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.
11In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
(c) Whether there are common issues of fact or law.
12I find that these Applications should be heard together. There are clearly common and overlapping issues of fact and law and a public interest in avoiding a multiplicity of proceedings. Further, the respondents are identical in each proceeding.
13In reaching this conclusion, I have considered the respondents’ submissions but do not find them persuasive. The Applications are at a relatively early stage in the hearing process insofar as there has yet to be exchange of disclosure. While I can appreciate that the respondents have organized their material in a particular way to date, I would anticipate that there will be benefits to all parties on going forward basis given that there will likely be less duplication of material required to be exchanged and filed with the Tribunal for the hearing. As for the interest in raising individual issues in respect of each Application, this will not be hindered in a single proceeding. In fact, I note that notwithstanding that the Applications will be heard together, each applicant will continue to bear the onus of proving that he or she has been discriminated against in the specific circumstances alleged.
14The parties may make submissions in the hearing at the appropriate time as to which evidence is relevant in respect of the issues in each Application.
Should the Named Individuals be removed as Parties?
15Rule 1.7 gives the Tribunal the authority to remove or add a party.
16In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, the Tribunal made the following observations about the naming of respondents:
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.
17In Persaud v. Toronto District School Board, 2008 HRTO 31, the Tribunal stated that the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is 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 sought to be removed?
Is there 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?
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.
18In their Requests, the corporate respondents ask that all named individuals be removed as parties.
19These respondents submit that the allegations in the Applications arise from the employment and tenancy issues which relate directly to the corporate respondents and not the individuals. The respondents submit that the corporate respondents are functioning entities with the “ability to address, defend and remedy all issues of this matter”. The respondents further submit that all claims by the applicant relate to functions of individuals during the normal course of their employment with either of the corporate respondents.
20The applicants oppose the Request. The applicants state that the fact that the discrimination alleged occurred in the course of the individuals’ duties is not conclusive because the fact that a corporate respondent may also be jointly and severally liable is not a basis to insulate the employees from personal liability (citing Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.)). Further, the applicants submit that in these Applications, the conduct is primarily that of individuals and thus they should remain as parties.
21I now turn to the specific allegations against and submissions in respect of each named individual.
Eugene McCarthy
22The applicants submit that Mr. McCarthy, the vice president and officer of both corporations, is central to the allegations contained in the Application. The respondents make no specific submissions about their Requests to remove him (or any other individuals) beyond the general submissions made.
23Based on the allegations in each Application, I agree that Mr. McCarthy’s conduct is central. Mr. McCarthy figures prominently in almost every allegation made in the Applications, including taking the position that Ms. Whittaker had quit, refusing to accommodate her, threatening to replace the applicants with other superintendents and threatening to reprise against the applicants if they did not sign off on an offer to resolve.
24The request to remove Mr. McCarthy is denied.
Hannelore Kaeser
25The applicants submit that as owner and sole director of the corporate respondents, Ms. Kaeser should remain as a party. The applicants state that neither they nor the Tribunal have evidence to determine which of the two “directing minds” (Mr. McCarthy or Ms. Kaeser) was the “impetus” for the Code harassment and discriminatory termination of employment. In other correspondence filed with the Tribunal, the applicants rely on Ms. Kaeser stating that following the death of her husband in February 2011, she had “become involved in the leadership of the two companies” and that Ms. Kaeser will and/or should be held personally responsible for the actions of the corporations given her role as president and shareholder of a corporation with fewer than three shareholders/members.
26I find it appropriate to remove Ms. Kaeser as a party. Notwithstanding the applicants’ submissions, the applicants have not provided any particulars of Ms. Kaeser being directly involved in any of the allegations. Indeed, as indicated above, the applicants allege in their Applications that the main individual involved in the allegations is Mr. McCarthy. I note that Ms. Kaeser filed a Response stating that she had not met, talked, seen or communicated with the applicants in any way. These assertions were not challenged in the Replies. Instead, it appears that the basis for the applicants’ claim against Ms. Kaeser is a suspicion based on her role in the corporations. This is not a compelling reason for Ms. Kaeser to remain a party, particularly where there has not been any issue raised about the corporations’ ability to remedy any breach and in fact, the opposite has been asserted by the respondents.
27In the circumstances, Ms. Kaeser is removed as a party and the style of cause is amended accordingly.
Chris Wong
28Chris Wong is employed by the corporate respondents. She is responsible for preparing payroll-related matters, including records of employment.
29The applicants allege that Ms. Wong did not issue their records of employment as required by law which delayed their benefits. Further, the applicants allege that she did not issue Ms. Whittaker’s severance pay until many months after her termination. While the applicants appear to allege that these actions are attributable to Ms. Wong, the Applications refer to the request for the ROE’s and severance payment being made to Mr. McCarthy and do not reference any interaction with Ms. Wong.
30In Ms. Wong’s Response, she states that she has never met, talked, seen or communicated with either applicant and that she performs her responsibilities on the instructions she receives. The applicants do not appear to take issue with this in their Replies.
31I grant the request to remove Chris Wong as a party. There are no facts alleged that would support a finding that Ms. Wong violated the Code in her involvement in this matter given that she had no interactions with the applicants.
Marlin McGee and Betty McGee
32The McGees are the superintendents who replaced the applicants.
33The allegations against the McGees are:
Ms. McGee was present when Mr. McCarthy came to their apartment and took pictures (conduct described as a breach of privacy and harassment).
Mr. McGee entered their storage locker, searched it and then changed the locks, following which Mr. McCarthy sent the applicants an email telling them they could not enter the locker any longer (conduct described as continuing to harass the applicants and attempting to intimidate so the applicants will drop the human rights case);
The McGees changed the pass code for the front door so that the applicants could not receive guests, their shipments and required medications (an allegation that was not particularized in the original Applications).
34To the extent documents are included in the materials, they reflect that communication about the storage locker issue took place between the applicant Mr. Whittaker and Mr. McCarthy as opposed to involving either of the McGees.
35Further, in materials filed by the respondents, Mr. McCarthy states that entry, search and changing of the locks of the storage area was at his direction.
36I do not find that the McGees should continue as parties. While it appears that they were involved in the events (and thus may be necessary witnesses), I have difficulty seeing how their connection with the allegations would result in a finding that they either of them personally violated the Code (either by acting as they did because of a Code-related ground and/or as a reprisal because the applicants were pursuing their rights under the Code). The applicants have not pled any factual foundation to suggest that the McGees were acting independently and/or contrary to the Code. Further, I do not find that their role is central or that there is any other compelling reason why they should remain as parties.
Summary of Orders
37The Tribunal directs:
The Applications will be heard together. Notice of hearing will follow from the Registrar; and
The Request to remove the named individual respondents is granted in part. Hannelore Kaeser, Chris Wong, Merlin McGee and Betty McGee are removed as parties and the style of cause is amended accordingly.
Dated at Toronto, this 26th day of July, 2013.
“Signed by”
Kathleen Martin
Vice-chair