Marsden v. Halton Condominium Corporation No. 41 (Board of Directors), 2013 HRTO 1462

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marsden

Applicant

-and-

Board of Directors of the Halton Condominium Corporation No. 41 and The Active Group

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: August 27, 2013 Citation: 2013 HRTO 1462 Indexed as: Marsden v. Halton Condominium Corporation No. 41 (Board of Directors)

WRITTEN SUBMISSIONS

Anne Marsden, Applicant

Self-represented

SimpsonWigle LLP, John M. Wigle and Firdaus H. Walele, Proposed Respondents

Firdaus Walele, Counsel

The Active Group, Proposed Respondent

Robert W. Dowhan, Counsel

1This Interim Decision addresses the applicant’s Request for Reconsideration dated July 19, 2013. By Case Assessment Direction dated August 7, 2013, the Tribunal decided to treat her Request for Reconsideration as a renewal of her request to add the proposed respondents to her Application.

Factual Background

2The applicant filed an Application on October 5, 2011 alleging discrimination in housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She named as a respondent the board of directors of the condominium corporation for the building in which she owns a unit.

3On May 1, 2013, the applicant filed a Request for Order During Proceedings (“RFOP”) in which she sought, among other things, to add the following as respondents to the Application:

a. The property manager for her condominium corporation: The Active Group (“TAG”), and

b. The lawyers for her condominium corporation: SimpsonWigle LLP, John Wigle and Firdaus Walele (the “SimpsonWigle proposed respondents”).

4Both TAG and the SimpsonWigle proposed respondents opposed being added as respondents.

5By Interim Decision dated July 11, 2013, the Tribunal denied the applicant’s request to add TAG and the SimpsonWigle proposed respondents to this Application. The Tribunal denied the request on the basis that the applicant had failed to make any specific allegations in her RFOP that could support a finding that the proposed respondents have violated the Code. The only allegation she made was that the proposed respondents bore as much, if not more, responsibility as the respondent for the circumstances that led to the Application. However, in the RFOP she failed to specify any particulars that would support this bald allegation. Therefore her request to add the proposed respondents was denied.

6The applicant filed a Request for Reconsideration dated July 19, 2013 in which she provided more detailed particulars and allegations to support her request to add the proposed respondents.

7By Case Assessment Direction dated August 7, 2013, the Tribunal decided to treat her Request for Reconsideration as a renewal of her request to add the proposed respondents as parties to her Application. In the CAD, I provided the proposed respondents with the opportunity to file any additional responding submissions they wished to provide in response to the applicant’s more particularized request.

Submissions

8By response dated August 19, 2013, TAG opposed being added as a respondent. TAG submitted that it merely provides advice and information to the respondent. It argues that it has at all material times acted as an agent of the respondent with respect to its interactions with the applicant.

9By response dated August 21, 2013, the SimpsonWigle proposed respondents submit that the applicant has not set out any alleged facts that could support a violation of the Code by the SimpsonWigle proposed respondents. In particular, they submit that they have no legal relationship to the applicant and that they do not provide housing or accommodation to the applicant or anyone else. The SimpsonWigle proposed respondents also submit that the applicant’s request is an abuse of process. Finally, the SimpsonWigle proposed respondents submit that an absolute privilege attaches to any communication between them and their client, the respondent in this matter. Therefore, they submit that the applicant cannot rely on these communications in legal proceedings to establish that they have breached the Code.

Findings

10The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12. In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

TAG

11After considering the Smyth factors, I find that it is appropriate to add TAG as a respondent to the Application. The applicant has alleged that TAG is responsible for violations of the Code in its day to day management of the condominium and by failing to ensure that the respondent’s decisions and policies are properly followed. In my view, the applicant has made allegations that could support a finding that the proposed respondent violated the Code. Since the Application is still at a relatively early stage, I consider it fair in all the circumstances to add TAG as a respondent.

SimpsonWigle Proposed Respondents

12I deny the applicant’s request to add the SimpsonWigle proposed respondents to her Application. The Tribunal does not have jurisdiction to inquire into claims of discrimination about every relationship or interaction, but rather only those that properly fall within the five social areas of the Code. Tribunal jurisprudence has consistently stated that the relationship between a lawyer and an opposing party is not covered by the Code. See for example Cooper v. Pinkofskys, 2008 HRTO 390; McMillan v. Winners Merchants International LP, 2013 HRTO 701; Traversy v. Mississauga (City), 2013 HRTO 835; Humphries v. General Electric of Canada, 2009 HRTO 1869; and Belso v. York Region Police, 2009 HRTO 757.

Orders

13The Tribunal orders as follows:

a. The applicant’s request to add TAG as a respondent is granted.

b. TAG is permitted to file a full Response to the Application if it wishes to supplement the submissions it made in response to the applicant’s Request for Reconsideration. If TAG does file a full Response, it must be copied to the other parties and filed with the Tribunal within 21 days of the date of this Interim Decision.

c. The applicant may file a Reply to TAG’s Response. The applicant shall file any Reply with the Tribunal, copied to the other parties, not later than 14 days after TAG’s Response was sent to the applicant.

d. The applicant’s request to add the SimpsonWigle proposed respondents as parties is denied.

14I am not seized.