Mui Ngoan Giang v. A.P. Plasman Inc., 2014 HRTO 1038

Human Rights Tribunal of Ontario

B E T W E E N:

Mui Ngoan Giang

Applicant

-and-

A.P. Plasman Inc.

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: July 16, 2014

Citation: 2014 HRTO 1038

Indexed as: Giang v. A.P. Plasman Inc.

WRITTEN SUBMISSIONS

Mui Ngoan Giang, Applicant

Self-represented

Kasia Bondy and A.P. Plasman Inc., Respondent and proposed Respondent

David Amyot, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The Application was delivered to the originally named respondent, Kasia Bondy, on May 30, 2014. The respondent has not filed a Response to the allegations contained in the applicant, but instead filed a Request for an Order During Proceedings ("RFOP") using a Form 10 on June 18, 2014 requesting:

a. That Kasia Bondy be removed in her personal capacity from the Application and that the respondent be named as A.P. Plasman Inc.;

b. That the applicant particularize the details of her allegations of discrimination and/or violations of the Code as set out in the Application;

c. That the respondent be granted an extension of 35 days from the date on which the applicant files particulars to file its Response.

3The applicant filed a Form 10 and a Form 11 (Response to Request for an Order During Proceedings) apparently in response to the respondent's RFOP. The respondent filed a Form 11 responding to the applicant's Form 10. However, the Form 10 did not provide any request and the Tribunal has not treated it as a request for any relief. This Interim Decision responds solely to the June 18, 2014 RFOP filed by the respondent.

Removal of the Individual Respondent and Addition of the Corporate Respondent

4Section 1.7(b) of the Tribunal's Rules of Procedure states:

In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add or remove a party.

5The Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31 sets out at paras. 4 - 5 the principles for removing personal respondents:

1. Is there 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 [is] sought to be removed?

3. Is there 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?

6The personal respondent submits that she should be removed as a respondent and that the corporation should be named as the respondent. In a joint submission, the corporation supports the request and submits that at all times it was the employer of the personal respondent, and that the personal respondent was at all times acting within the scope of her job duties. Further, the corporation submits that all allegations made against the personal respondent were within the context of her employment with the corporation.

7The corporation submits that should a breach of the Code be found it does not dispute the vicarious liability of the corporation for the acts of the personal respondent, and that the corporation is in the best position not only to respond to the allegations but to provide any ordered remedy.

8Finally, the corporation submits that there will be no prejudice to the applicant if the personal respondent is removed. It submits that in any event the personal respondent likely will be required to give evidence to respond to the allegations.

9The applicant requests that the personal respondent not be removed because it was the personal respondent who made the decisions with respect to the chair the applicant was given to use at work, which the applicant alleges hurt her.

10I agree with the corporation that there will be no prejudice to the applicant if the personal respondent is removed. There is no issue with respect to the corporation accepting vicarious liability for any acts of the personal respondent. While it may be true that the specific decision regarding use of a chair was made by the individually named respondent, the corporate respondent accepts that such a decision was in the normal course of the individual's duties. This is not the type of case where the personal conduct of a named individual is central or might make it appropriate to award a remedy specifically against that individual if an infringement were found; those types of cases typically involve allegations of individual wrongdoing such as, for example, allegations of sexual or racial harassment. The Tribunal orders that the personal respondent be removed, the corporation be added, and the style of cause amended accordingly.

Order for Particulars

11The respondent requests that the applicant provide particulars of her claims of discrimination and the remedy sought.

12The Tribunal has found in previous cases that there must be exceptional circumstances for a respondent to raise a preliminary request for particulars prior to the filing of a response. The issue that the Tribunal must decide is whether the Application is so deficient of information about the alleged facts and legal issues that the respondent is unable to comply with its obligation to file a Response. See: Miga v. Arcelor-Mital Defasco, 2012 HRTO 619.

13The Application along with attachments amounts to some 127 pages of material. I have reviewed the Application and it appears fairly clear that applicant is alleging that the respondent failed to appropriately accommodate her in relation to certain injuries. There is also at least one reference to the applicant's belief that she was treated differently in the workplace because of her ethnic background.

14I conclude that, for the purposes of this preliminary stage of the proceeding, the Application contains sufficient information to enable the respondent to prepare its Response and, within its Response, to address certain claims and indicate which specific allegations they are unable to accept or refute because of alleged lack of particularity. It remains open to the respondent to renew its request for particulars in this respect at a later point in the process.

15I do note, however, that the applicant does not appear to have clarified anywhere in her material the remedy she seeks if successful. Indeed, when asked to do so as part of the administrative process designed to ensure the 'completeness' of her Application, she appears to suggest the Tribunal can award whatever remedy it deems appropriate if a finding of liability is made, noting at one point, "I give my whole power to my representative to decide this action." It is important to note that the Tribunal is not and cannot act in any capacity as the representative of the applicant or any party to a proceeding before it. The Tribunal is a neutral, adjudicative body. For this reason, I would order the applicant to provide details of what remedy she is seeking, whether that involves monetary or non-monetary remedies.

order

16Within 14 days of the date of this Order, the applicant shall provide details of what remedy she is seeking, whether that involves monetary or non-monetary remedies.

17The respondent shall provide any Response within 35 days of its receipt of the particulars regarding remedy from the applicant.

18The personal respondent is removed as a party to this Application and the corporation is added as a respondent, and the style of cause is amended accordingly.