Léger v. Metropolitan Toronto Condominium Corporation No. 933, 2015 HRTO 630

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: May 14, 2015 Citation: 2015 HRTO 630 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 originally alleged discrimination with respect to goods, services and facilities because of race, colour and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A hearing has been scheduled for October 1 and 2, 2015.

3This 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

4The applicant alleges that she was not permitted access to records of the condominium corporation, 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 and remove parties

5The Application originally named only one respondent: Michael Furey. 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.

6Michael Furey has requested that MTCC 933 be added as a corporate respondent, and that he be removed as a personal respondent. The applicant opposes the addition of MTCC 933 and the removal of Mr. Furey because she claims that "he acted in his own initiative rather [than] at the direction of the Board of Directors." The applicant is particularly concerned that if the corporate respondent is added as a party, a remedy may be ordered against it, and that would have repercussions on the owners of the units, including her.

7My determinations below with respect to the addition or removal of parties are not determinations of whether the respondents violated the Code.

Request to add MTCC 933

8MTCC 933 has since consented to Mr. Furey's request, however, agreeing that MTCC 933 is the proper respondent to the Application. It states that Mr. Furey's interactions with the applicant were in his role as the president of the Board of Directors, and that MTCC 933 would be liable for his actions. While the applicant opposes the addition of MTCC 933 as a respondent on the basis that it might result in an increase in the fees of unit owners to cover any remedy ordered against MTCC 933, I find that this does not constitute prejudice in the sense of legal prejudice or unfairness, and there can be no legal unfairness in holding MTCC 933 liable for a breach of the Code if it is otherwise ultimately found to be so liable. Having reviewed the submissions of the parties, I find that it is fair and appropriate to add MTCC 933 as a respondent.

Request to remove Mr. Furey

9In 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.

10The Tribunal has generally considered the following factors as set out in Persaud v. Toronto District School Board, 2008 HRTO 31 ("Persaud") at para. 5, in deciding whether to remove an individual respondent from a proceeding:

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?

11The corporate respondent accepts that it is vicariously liable for Mr. Furey who it claims acted within the scope of his duties as president of the Board of Directors in his communications with the applicant. However, the allegation in the Application is that Mr. Furey decided to treat the applicant differently from other owners because of her race, colour and the fact that she is a woman. If true, this is unlikely to be treatment within the scope of his duties as president. Even if the corporate respondent accepts liability, where the individual conduct of the personal respondent is at issue such that there could be a finding of personal liability under the Code, the Tribunal has previously found it should be cautious about removing personal respondents at a preliminary stage of the proceedings. Having reviewed the submissions of the parties, and the factors in Persaud, I deny the request to remove Mr. Furey.

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

12The 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...".

13She 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.

14Mr. Furey, however, has responded to the request to add the proposed respondents: Mr. Musso, ICC Property Management Ltd., and Bryan Whealen. Mr. Furey 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 in this case.

15It is also not clear to me what MTCC 933's position is with respect to the applicant's request to add Mr. Musso, ICC Property Management Ltd., and Bryan Whealen, and whether it supports Mr. Furey's position.

16In these circumstances, further information is required from the applicant and from the newly added MTCC 933.

request to amend ground

17The applicant filed a request to change the ground of "gender identity" to "sex". Given that her Application clearly cited the ground of gender identity because the applicant is female, not male, this request is granted. The Application will be treated as one which alleges discrimination with respect to goods, services and facilities because of race, colour and sex contrary to the Code.

orders

18The Tribunal orders that MTCC 933 is added as a respondent. The style of cause is amended to reflect this change.

19The Tribunal also allows the applicant's request to replace the ground of "gender identity" with "sex".

directions

20Within 14 days, the applicant must file with the Tribunal and deliver to the parties and proposed respondents submissions which explain what her intended evidence will be to support any claim that the proposed respondents were not acting on instructions from Mr. Furey.

21Within 30 days, MTCC 933 must deliver to the parties and proposed respondents, and file with the Tribunal a Response (Form 2) to the Application.

22Within 21 days, MTCC 933 must deliver to the parties and proposed respondents, and file with the Tribunal its submissions with respect to adding Mr. Musso, ICC Property Management Ltd., and Bryan Whealen. In particular, MTCC 933 should address the factors in Sigrist and Persaud, above, including:

• whether it takes the position that Mr. Musso, ICC Property Management Ltd., and Bryan Whealen were acting within the scope of their duties as agents (or otherwise) of MTCC 933 in their dealings with the applicant;
• whether Mr. Furey instructed them not to provide the information and documents to the applicant which she says that she was denied; and
• whether MTCC 933 would agree to be responsible for the actions of the proposed respondents, and cover any remedy that might be awarded to the applicant if the Tribunal were to find that the actions of the proposed respondents constitute discrimination.

next step

23Once the applicant and the MTCC 933 has complied with the above direction and the Tribunal has decided whether to add the above three proposed respondents, the Tribunal will schedule a case-management hearing by teleconference to deal with outstanding requests, including the request to amend the remedy section of the Application, and production issues. This Interim Decision will be delivered to the parties and the proposed respondents.