HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
A.B.
Applicant
-and-
Havcare Investments Inc., Marian Linton, and Carolyn Krebs
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: A.B. v. Havcare Investments Inc.
WRITTEN SUBMISSIONS
A.B., Applicant
Megan Evans Maxwell, Counsel
Havcare Investments Inc., Marian Linton and Carolyn Krebs, Respondents
No submissions received
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to accommodation (housing) because of age. At the time of the allegations in the Application, the applicant was a 17 year old person who had withdrawn from parental control.
2The hearing in this matter commenced on November 7, 2012. Further continuation dates are scheduled for February 12 and 13, 2013 based upon the parties’ stated availability.
3An Interim Decision was issued on November 16, 2012 (2012 HRTO 2161) further to several issues that arose during the hearing. One issue was about the disclosure of Leigh MacDonald’s notes by the applicant. Those notes have now been disclosed by the applicant. Another issue was about the identification of the representative representing the respondents. This issue is set out below.
adding a personal respondent
4Subsequent to the hearing, the applicant filed a Request for Order During Proceedings (“RFOP”) seeking to add Carolyn Krebs as a personal respondent. The applicant submits that at the hearing, Marian Linton clarified that she uses her “married” name, Carolyn Krebs. The applicant submits that a property search reveals that Ms. Krebs is the personal respondent’s legal name.
5The respondents have not filed a Response to a RFOP and the time for doing so has passed.
6Rule 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 para. 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 whether 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.
7In this case, I find it appropriate to add Carolyn Krebs as a personal respondent notwithstanding that the hearing has already commenced. There are specific allegations against Marian Linton, who also self-identified during the hearing as Carolyn Krebs, and there are no prejudice or notice issues raised by the respondents. In fact the respondents have not filed a Response to the RFOP.
8Further, in her written communications with the Tribunal dated November 7, 2012 confirming the addresses for the corporate respondent and herself personally, I note that she signed that communication as “M. Linton-Krebs”.
9Carolyn Krebs is added as a personal respondent and the style of cause is amended accordingly.
the respondents’ failure to comply with the tribunal’s directions
10It is unclear who is representing the respondents. At paras. 3 to 8 of the Interim Decision, the Tribunal wrote:
Initially, the applicant identified a “M. Linton” as being the only respondent. Later, the applicant sought to add the corporate respondent Havcare Investments Inc as she discovered that it was the owner of the apartment building at issue and “M. Linton” was the property manager. The applicant’s request was granted in an Interim Decision, 2010 HRTO 1510 and the corporate respondent was also added as a respondent.
M. Linton filed a joint Response on behalf of both respondents. The Tribunal issued a Respondent’s Response to Notice of Incomplete response dated November 21, 2011 to M. Linton and directed M. Linton to complete Question 1 of the Response and to provide his/her legal first name. M. Linton supplied “Marian Linton”, and she advised that she was representing both respondents.
Shortly before the hearing, the applicant’s then representative emailed the Tribunal enclosing copies of several newspaper articles in which it was written that one of the owners of the corporate respondent was named Carolyn Krebs, who also went by the name of “Mrs. Linton” and “Mrs. Goodman”. The applicant’s then representative mailed this information to the respondents and submitted that there may be confusion about the identification of the personal respondent.
At the commencement of the hearing, and in response to the Tribunal asking who was representing the respondents, a female stated that she was representing both respondents. She informed the Tribunal that when she attends proceedings before the Landlord and Tenant Board (“LTB”), she explains her different names to the LTB and they address her as Ms. Krebs. She explained to the Tribunal that her married name is Carolyn Krebs and that she and her husband own the corporate respondent which is located at 500 Dawes Road (“Dawes Road”), the building at issue in the Application. She also stated that she goes by the name of Marian Linton and is the property manager at Dawes Road. She submitted that she could be referred to as Ms. Krebs for the proceedings before the Tribunal. She signed the Tribunal’s Appearance Sheet using both names.
Based upon this information, and because of the differences between the names of Carolyn Krebs and Marian Linton, particularly first names, the Tribunal directs the respondents to produce a copy of the corporate respondent’s articles of incorporation showing that Carolyn Krebs is a principal in the business. Further, the Tribunal directs that Ms. Krebs and Ms. Linton provide photo identification for both names in question.
The information that is ordered to be disclosed is to be delivered to the Tribunal and the applicant’s counsel by the respondents within 30 days of the date of this Interim Decision.
11The respondents have not complied with the Tribunal’s directions nor communicated with the Tribunal since the issuance of the Interim Decision. As noted above, in her November 7, 2012 communication with the Tribunal, Marian Linton signed such correspondence as “M. Linton-Krebs”. She provided an address for the corporate respondent and the personal address for Marian Linton, an address that she stated at the hearing was the residence of Carolyn Krebs.
12Given the respondents’ failure to comply with the Tribunal’s directions, I find it appropriate to obtain submissions from the parties about whether the conduct of the respondents and/or their representative amounts to an abuse of process and if so what order, if any, would be appropriate in the circumstances, including whether the respondents should be permitted to continue to participate in the hearing and this Tribunal process and/or whether it would appropriate to strike the respondents’ materials, including their Response, and proceed without their further participation.
13Accordingly, the parties are directed to provide written submissions, including any case law, documentation or other written material, to the Tribunal, copying the other parties. The applicant’s submissions are to be delivered to the Tribunal and the respondents by Monday, January 21, 2013 and the respondents’ submissions are to be delivered to the Tribunal and the applicant by Friday, January 25, 2013.
14Following receipt of the parties’ written submissions, or if the time period for filing submissions elapses and a party has not filed submissions, the Tribunal may issue further directions or a decision with respect to the issues raised in this Interim Decision.
Dated at Toronto, this 14th day of January, 2013.
”signed by”
Alison Renton
Vice-chair