Knauth v. Toronto Community Housing Corporation, 2016 HRTO 1390

Human Rights Tribunal of Ontario

Between:

Maya Knauth Applicant

-and-

Toronto Community Housing Corporation and Fred Zhang Respondents

Interim Decision

Adjudicator: Jo-Anne Pickel Date: October 26, 2016 Citation: 2016 HRTO 1390 Indexed as: Knauth v. Toronto Community Housing Corporation

Written Submissions

Maya Knauth, Applicant Self-represented

Toronto Community Housing Corporation and Fred Zhang, Respondents M. Elizabeth Keenan, Counsel

1This Interim Decision deals with the respondents’ request that the Tribunal remove the personal respondent from the Application.

2In her Application, the applicant alleged that the respondents discriminated against and harassed her contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). In particular, she alleged that the personal respondent harassed and bullied because of the grounds listed in her Application.

Request to Remove Personal Respondents

3The respondents requested that the Tribunal remove Mr. Zhang as a personal respondent to the Application.

4Rule 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 cautioned that the unnecessary naming of personal respondents is a practice to be discouraged, as it serves to unnecessarily add to the complexity of proceedings.

5In determining whether it is appropriate to remove a personal respondent, the Tribunal has consistently applied the following factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5:

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?

6The respondents submit that that there is no issue as to the corporate respondent’s deemed or vicarious liability for Mr. Zhang’s alleged actions in this case under s. 46.3(1) of the Code. I do not agree.

7Section 46.3(1) states as follows:

For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), 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 of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization. [emphasis added]

8Among other things, the applicant has alleged various instances of harassment by Mr. Zhang. In my view, there is an issue as to whether the corporate respondent would be vicariously liable for this alleged harassment under s. 46.3(1). In the event the applicant’s harassment allegations are substantiated, a remedy may be sought against Mr. Zhang even if the corporate respondent were to acknowledge vicarious liability for his conduct. As a result, I do not find it appropriate to remove Mr. Zhang as a personal respondent.

Order

9For the above reasons, the respondents’ request to remove Mr. Zhang as a personal respondent is denied.

Dated at Toronto, this 26th day of October, 2016.

“Signed By”

Jo-Anne Pickel Vice-chair

Correction

The Interim Decision issued on October 26, 2016 incorrectly stated on the Written Submissions page that the applicant was represented by Mikaila Greene, Counsel. It should have read that the applicant was Self-represented.