Léger v. Metropolitan Toronto Condominium Corporation No. 933, 2015 HRTO 1145

Human Rights Tribunal of Ontario

B E T W E E N:

Pascale Léger Applicant

-and-

Metropolitan Toronto Condominium Corporation No. 933 and Michael Furey Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: August 28, 2015 Citation: 2015 HRTO 1145 Indexed as: Léger v. Metropolitan Toronto Condominium Corporation No. 933

WRITTEN SUBMISSIONS

Pascale Léger, Applicant Self-represented

Metropolitan Toronto Condominium Corporation No. 933 and Michael Furey, Respondents Maureen Quinlan, Counsel

Massimo Musso, ICC Property Management Ltd., and Bryan Whealen, Proposed Respondents Maureen Quinlan, Counsel

Introduction

1This Application alleges discrimination because of race, colour and sex with respect to goods, services and facilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). Dates for the hearing of the Application have been scheduled for October 1 and 2, 2015.

2This Interim Decision deals with some of the Requests for Orders during Proceedings filed by the parties, and also provides direction with respect to the upcoming hearing.

Background

3The applicant alleges that she was not permitted access to records of the corporate respondent, Metropolitan Toronto Condominium Corporation No. 933 ("MTCC 933"), which governs the building in which the applicant owns a unit. The Application describes her communications with the property manager, Massimo Musso, who was at first compliant with her requests, and showed her some documents, but who later avoided answering her requests for other documents, saying that the Board of Directors would deal with her requests. She emailed Michael Furey, president of the Board of Directors of MTCC 933 for an explanation, and, by the time she filed the Application, she had not received a satisfactory answer. She alleges that the property manager must have told Mr. Furey that she is a black female, and this is why he decided to not supply her with information which she claims she is entitled to by law as an owner of a unit. She claims that white owners were permitted access to the information being denied to her.

Requests to add parties

4The Application originally named only one respondent: Michael Furey. MTCC 933 was subsequently added as a respondent. The applicant has made a request to add Mr. Musso, and to add the property management company which employs him, ICC Property Management Ltd. She has also requested to add Bryan Whealen, the vice-president of MTCC 933's Board of Directors. She claims that she now has reason to believe that these three proposed respondents were conspiring with Mr. Furey to treat her differently because she is a black woman.

Request to add Mr. Musso, ICC Property Management Ltd., and Bryan Whealen

5In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14, at para. 42, the Tribunal set out the general concerns regarding the unwarranted inclusion of personal respondents:

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, [see s.46.3(1) of today's 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.

6The applicant states in her Request to add parties that when she filed the Application, "I believed that Michael Furey was the one who directed others to discriminate against me. I now believe that all individuals who played a role in this matter must be held accountable for their actions…".

7She states:

… I have reasonable grounds to believe that there was a broader conspiracy against my rights as an owner and that there may have been ulterior motives on the part of all these Respondents, including Mr. Musso, to explain the discrimination I was subjected to.

8The applicant's documents filed to date, however, also appear to suggest that the applicant's evidence will be that any conspiracy not to provide service or information to the applicant is based on the applicant's efforts to uncover alleged theft by Mr. Musso of MTCC 933's funds, a matter over which the Tribunal has no control.

9Mr. Furey has responded to the request to add the proposed respondents: Mr. Musso, ICC Property Management Ltd., and Bryan Whealen. Mr. Furey objects to them being added. He states that he made the decision to place in abeyance the applicant's requests for information and documents, and that he directed the proposed respondents to do just that. It is not clear to me what the applicant's intended evidence will be to prove that this is not true and to establish some basis to support her contention that the personal conduct of Mr. Musso and Mr. Whealen is a central issue to the allegations of discrimination because of race, colour or gender.

10MTCC 933's position is the same as Mr. Furey with respect to the applicant's request to add Mr. Musso, ICC Property Management Ltd., and Bryan Whealen. MTCC 933 also states that the proposed respondents were at all times acting within the scope of their duties as agents/representatives of MTCC 933 which is vicariously liable for them. MTCC 933 agrees to be responsible for the actions of the proposed respondents.

11The Code is remedial in nature, and I am satisfied that any finding of discrimination by the proposed respondents may be remediated by the corporate respondent. There is a strong likelihood that adding respondents would unnecessarily add to the complexity of these proceedings when the Tribunal's proceedings are meant to be expeditious. I also note that the respondents have indicated that Mr. Furey and Mr. Musso will be witnesses at the hearing so that the applicant may elicit evidence from them without needing to name them as respondents. If she wishes to obtain evidence from Mr. Whealen, then she may summons him even though he is not a respondent.

12For these reasons, I deny the applicant's request to add the proposed respondents.

Directions

13As directed in the Case Assessment Direction of August 11, 2015, the parties must file with the Tribunal (and deliver to each other), by September 4, 2015, any documents upon which they intend to rely at the hearing. These documents will be a subset of the arguably relevant documents that they have earlier disclosed to each other as dictated by the Notice of Hearing.

14The Tribunal conducted a mediation-adjudication on August 27, 2015 which was not successful in settling this matter. As a result, some case management occurred, and the respondents agreed to remove redactions from arguably relevant documents shared with the applicant unless protected by privilege. The respondents must confirm that they have done so by September 4, 2015.

Next Step

15The Tribunal will deal with any outstanding requests at the commencement of the hearing, including any outstanding production issues, and any pursuit by the applicant of the request to amend the remedy section of the Application or to withdraw her allegation of discrimination because of sex.

16This Interim Decision will be delivered to the parties and the proposed respondents.