Gaines v. Toronto Community Housing Corporation, 2014 HRTO 271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Gaines

Applicant

-and-

Toronto Community Housing Corporation and Kimberly Garrett

Respondents

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: February 27, 2014

Citation: 2014 HRTO 271

Indexed as: Gaines v. Toronto Community Housing Corporation

WRITTEN SUBMISSIONS

Gary Gaines, Applicant

Self-represented

Toronto Community Housing Corporation and Kimberly Garrett, Respondents

Suzanne Nigra, Representative

Introduction

1This Application alleges discrimination with respect to housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The purpose of this Interim Decision is to address the respondents' request to remove the individual respondent as a party to this Application.

BACKGROUND

2The applicant alleges that the respondent Toronto Community Housing Corporation ("TCHC") issued him two notices for eviction, but that there were insufficient grounds. He alleges that he filed a grievance with the TCHC Ombudsman about the fact that he had received these eviction notices and that the Ombudsman investigated the matter. He alleges that upon reading her report, he learned that the individual respondent made comments about his mental health in the course of the Ombudsman's investigation. He alleges that he experienced stress, and that he went to his mailbox daily "with the possibility of receiving a Notice of Hearing for Eviction". He also alleges that a poisoned environment was created in his housing.

Request to Remove the Individual Respondents

3Rule 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 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.

4The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

Applying these principles to the Tribunal's power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:

1. Is there is 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 sought to be removed?

3. Is there is 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?

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.

5The respondents submit that the individual respondent is an employee of TCHC. They submit that TCHC is a corporate respondent in this Application and that it is alleged to be liable for the same conduct as the individual respondent. They submit that at all material times, the individual respondent was acting within her employment capacity and that her actions were consistent with TCHC's policies and procedures with respect to Ombudsman investigations. The respondent TCHC acknowledges that it is liable for the conduct of the individual respondent and submits that it is in a position to answer the allegations and to provide any remedy which may be awarded. The respondents submit that the applicant has not made any particularized allegations against the individual respondent beyond comments she made in the course of carrying out her normal employment related functions and duties and that there is no compelling reason to make a remedy against the individual respondent. They submit that the applicant would suffer no prejudice as a result of removing the individual respondent as a party to this Application. They submit that it is unnecessary to involve the individual respondent as a party in order to have a fair, just and expeditious resolution of the complaint.

6The applicant submits that the personal respondent should not be removed as a party, as that would be "akin to exonerating her" and she must be held accountable for her comments. He submits that her comments are central to his Application and she should not be removed as a respondent. Further, he submits that the comments were made outside of her employment duties and that it may be appropriate to award a remedy against her.

7Based on the materials before me, it appears that the alleged conduct of the named individual respondent may be central to the Application. A one day hearing has been scheduled in this matter for May 26, 2014, to determine whether the applicant's allegation regarding the individual respondent's comments can be made out. In these circumstances, the individual respondent is not removed as a party at this time.

ORDER

8The Tribunal directs as follows:

1. The respondents' request to remove the individual respondent as a party to this Application is denied.

9I am not seized.