HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Zehra Hussain
Applicant
-and-
2369503 Ontario Inc., o/a Pearson Vision Limousine, Faizal Shahzad and Hassan Choudhary
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Hussain v. 2369503 Ontario Inc., o/a Pearson Vision Limousine
WRITTEN SUBMISSIONS
Zehra Hussain, Applicant
Melody Jahanzahadeh, Counsel
2369503 Ontario Inc., o/a Pearson Vision Limousine, Faizal Shahzad and Hassan Choudhary, Respondents
Naseer Syed, Counsel
introduction
1This Interim Decision explains why the Tribunal is allowing the applicant’s request to amend her Application. It also explains why the Tribunal is denying the respondents’ request to remove Faizal Shahzad and Hassan Choudhary as personal respondents.
2The Application alleges discrimination with respect to employment because of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The applicant worked for the corporate respondent, either as a dispatcher, an office manager or both. That issue is disputed. She alleges that during the course of her employment she was subjected to harassing and insulting conduct by the personal respondents, who are directors of the corporate respondent. The applicant maintains that these directors treated other employees who are male badly as well, but that the personal respondents’ treatment of her was characterised by gender bias and discrimination. The respondents deny this.
request to amend
4The applicant was not represented when she filed her Application, which contains a detailed narrative. Nor was she represented at the time she requested to amend the Application. The proposed amendments are presented in a somewhat rambling form, but this is not surprising as the applicant did not have counsel at the time.
5The respondents object to some of the amendments but not others. The ones they object to are paragraphs which refer to events that predate the filing of the Application. The respondents say that this contradicts the applicant’s initial assertion in her request that the proposed amendments refer to events that postdate the filing of the Application. They also object to a number of paragraphs that they say are unduly long, unfocused and do not disclose any Code violations. They further state that the inclusion of a purported transcription of a conversation should be struck because it constitutes evidence, as opposed to pleadings. Finally, they say that an alleged reprisal referenced by the applicant is not a reprisal within the meaning of the Code and should be struck on that ground.
6In determining requests to amend applications under section 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend, and the prejudice to the respondent (see Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563).
7The Tribunal does not take an unduly technical approach to its analysis of pleadings or requests to amend them. In my view the respondents are asking the Tribunal to take an unnecessarily technical approach.
8The fact that some of the impugned paragraphs refer to events predating the filing of the Application is not a reason to disallow them. In terms of their content, they simply amplify the narrative the applicant already set out in her Application by giving further examples of the conduct she believes was discriminatory. They are not allegations of a wholly different nature that change the character of this Application. As such, given the early stage at which they were submitted, their addition does not prejudice the respondents. They will be given time to file amended Responses if they so chooses.
9The fact that the proposed new paragraphs are somewhat lengthy or disorganised is not a reason not to allow them. They still provide an intelligible narrative that the respondents can read, understand and respond to. Whether they disclose Code violations or not is a matter that the Tribunal will ultimately have to decide if this Application reaches a hearing.
10The fact that the pleadings contain evidence, such as a purported transcription of a conversation, is not prejudicial to the respondents. If anything, it is helpful to the Tribunal and all parties to have this level of detail set out in pleadings because it can serve as a reference point to compare testimony of witnesses and to examine credibility in the event of a hearing.
11Finally, the question of whether there was a reprisal within the meaning of the Code is ultimately a matter for the Tribunal to determine through the hearing process. An issue such as this will not be adjudicated through the process of deciding which amendments to allow or disallow.
12The nature of the proposed amendments does not prejudice the respondents insofar as they are consistent with and simply expand upon the narrative the applicant set out when she filed the Application. She made the request to amend early in the process, and the respondents will be granted time to file an amended Response. For these reasons I determine that the request to amend the Application is allowed.
request to remove personal respondents
13The respondents request that the personal respondents be removed from this Application on the grounds that any actions they took were in their respective capacities as directors of the corporate respondent and not in their personal capacities. The request is made in a single line and does not elaborate on this statement.
14The applicant opposes this request on the grounds that the Application sets out a number of incidents where the personal respondents allegedly acted in a manner that places their individual conduct at the centre of this Application.
15Rule 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.
16The 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:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
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?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
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?
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.
17Here the allegations, if proved, could support findings of Code violations against both personal respondents, as it is the alleged conduct of these two directors that is at the core of this Application. This could result in a determination that it is appropriate to order remedies against them personally.
18In addition, there is no indication on the part of the corporate respondent that it is prepared to assume liability for the acts of the personal respondents, nor that it has the capacity to fulfil any remedy the Tribunal might order if it were left as the sole respondent.
19Having regard to these circumstances, I am of the view that removing the personal respondents from this Application at this stage could create a situation in which the applicant might have no recourse as against the corporate respondent. In these circumstances it would be unfair to remove the personal respondents from this Application. The respondents’ request is therefore denied.
order
20The applicant’s request to amend her Application is granted.
21The respondent may file amendments to its Response within 30 days of the date of this Interim Decision.
22The applicant may file an amended Reply to the amended Response within 15 days of receiving the amended Response.
23The respondents’ request to remove Faizal Shahzad and Hassan Choudhary as personal respondents is denied.
Dated at Toronto, this 23rd day of January, 2015.
“signed by”
Paul Aterman
Vice-chair