Carreiro v. Borden, 2013 HRTO 534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isabel Carreiro Applicant

-and-

Laura Borden Respondent

A N D B E T W E E N:

Isabel Carreiro Applicant

-and-

Rouge Valley Co-operative Homes Inc. Respondent

Interim decision

Adjudicator: Jo-Anne Pickel Date: April 2, 2013 Citation: 2013 HRTO 534 Indexed As: Carreiro v. Borden

WRITTEN SUBMISSIONS

Isabel M. Carreiro, Applicant Clara Matheson, Counsel

Laura Borden, Respondent Self-represented

Rouge Valley Co-operative Homes Inc., Respondent Kiel Ardal, Counsel

1This Interim Decision addresses the applicant’s request that this Application be consolidated with an Application she filed on February 28, 2013 against Rouge Valley Co-operative Homes Inc. (the “Co-op”).

FACTUAL BACKGROUND

2On November 30, 2012, the applicant filed a Request for Order During Proceedings (“Request”) to add the Co-op as a respondent to her Application against Laura Borden. By letter dated March 14, 2013, she drew the Tribunal’s attention to a letter she had filed in December 2012 in which she sought to withdraw the Request on a without prejudice basis. She noted in that letter that she planned to file a fresh Application against the Co-op. This fresh Application was filed with the Tribunal on February 28, 2013. The Tribunal has assigned this Application file no. 2013-14044-I.

3In her Application against Ms. Borden, the applicant alleges that Ms. Borden made discriminatory remarks relating to the applicant’s disability. In her Application against the Co-op, the applicant alleges that the Co-op violated the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”), by failing to investigate her complaints about alleged discriminatory comments made by Ms. Borden and discriminatory posters allegedly circulated in the Co-op. She also alleges that the Co-op is vicariously liable for Ms. Borden’s alleged comments. Finally, the applicant alleges that the Co-op reprised against her by denying her opportunities to be considered for a position on its Board of Directors (“Board”).

4The applicant has requested that her Applications against Ms. Borden and the Co-op be consolidated. She submits that the Applications raise common issues of fact and law arising from the same incidents. She also submits that the public interest favours consolidating the cases to avoid a multiplicity of proceedings and the possible repetition of evidence.

5By Response (Form 11) dated March 14, 2013, the Co-op opposed the applicant’s request to consolidate the two Applications. The Co-op submits that the Applications raise distinct issues of fact and law. The Co-op submits that the Application against Ms. Borden is a private dispute about an incident that allegedly occurred when Ms. Borden was not a member of the Co-op’s Board and for which, according to the Co-op, it cannot be held liable. The Co-op also submits that it would be prejudiced because a consolidation of the Applications would add unnecessary time and complication to the adjudication of both Applications. In its Response, the Co-op stated that once the Tribunal processes the Application against the Co-op, it will request that it be consolidated with several applications filed by other applicants against the Co-op. The Tribunal consolidated these other applications by Interim Decision 2013 HRTO 519, dated March 27, 2013.

ANALYSIS

6Rule 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.

7In 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.

8I find that the applicant’s Applications against Ms. Borden and the Co-op should be consolidated. The two Applications raise interrelated facts and issues and the public interest weighs in favour of consolidating the Applications and hearing them together.

9The Application against the Co-op is broader than the Application filed against Ms. Borden. However, it encompasses some of the same issues raised in the Application against Ms. Borden. I find that the applicant’s allegation that Ms. Borden made certain discriminatory comments toward her is inextricably related to her allegation that the Co-op failed to investigate her complaints about these comments. In addition, the legal issues raised in the two Applications are interrelated such that I cannot conclude that it is plain and obvious on the facts as alleged in the Application that the Co-op cannot be held vicariously liable for Ms. Borden’s comments. In my view, such a finding would require hearing evidence and full legal submissions. As a result of these interrelated facts and issues, the public interest weighs in favour of consolidating the Applications in order to avoid the potential repetition of evidence and expense that might accompany separate proceedings.

10In addition, I do not accept that any significant prejudice will be caused to the Co-op from consolidating the applicant’s Applications. I do not agree that any unnecessary time and complication would arise for the Co-op from having these Applications consolidated. In fact, the consolidation of the Applications would likely lead to a more efficient use of time both for the parties and for the Tribunal.

ORDER

11For all these reasons, the applicant’s Applications against Ms. Borden (File No. 2012-11786-I) and the Co-op (File No. 2013-14044-I) are consolidated and will be heard together.