HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adrianna Biondic
Applicant
-and-
Toronto Community Housing Corporation and Primary Response Inc.
Respondents
INTERIM DECISION
Adjudicator: Jennifer Scott
Indexed as: Biondic v. Toronto Community Housing Corporation
WRITTEN SUBMISSIONS
Adrianna Biondic, Applicant
Self-represented
Toronto Community Housing Corporation, Respondent
Christina Henderin, Counsel
Primary Response Inc., Respondent
Mark Mendl, Counsel
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in housing because of disability – environmental sensitivities/multiple chemical sensitivities.
2This Interim Decision addresses a number of preliminary requests that have been filed by the respondents.
Summary Hearing Request
3The respondents have requested a summary hearing. The applicant has been given a number of extensions to respond to their requests, but has not done so. Given my decision below, it is not necessary for the applicant to respond to the summary hearing requests.
4The respondents’ requests for a summary hearing are denied and the Application will be processed in the normal course. Rule 19A.5 of the HRTO’s Rules of Procedure provides that the Tribunal need not give reasons for a decision not to hold a summary hearing.
Removal of the Individual Respondent
5The respondent Primary Response Inc. has requested that the Tribunal remove the individual respondent to the Application.
6Rule 1.7(b) of the Tribunal’s Rules of Procedure 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.
7The 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 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.
8Applying the factors set out in Persaud, above, I find that the personal respondent should be removed from this Application. The applicant claims the individual respondent used scented products, confronted the applicant about the removal of a poster, and is alleged to have told the applicant that she is the only person in the building that has a problem with scented products. The respondent Primary Response Inc. has acknowledged that it is liable for all of the actions attributed to the individual respondent, has stated there is no issue regarding its ability to respond or remedy the alleged Code infringement, and asserts there is no prejudice to the applicant if the individual respondent is removed. I agree. The individual respondent’s continued involvement in this Application is not necessary to the fair, just and expeditious adjudication of the dispute between the parties.
9For these reasons, the individual respondent is removed from the Application.
Deferral Request
10The respondent Toronto Community Housing Corporation (“TCHC”) has requested a deferral of the Application to an ongoing proceeding before the Landlord and Tenant Board. The applicant opposes the deferral.
11The Tribunal may defer consideration of an application, on such terms as it may determine, and on its own initiative (Rule 14.1). The Tribunal has stated that deferral is not automatically invoked simply because the parties are involved in other legal proceedings. It is a discretionary measure that the Tribunal exercises on the basis of the circumstances in each case. Absent good reason, applicants and respondents before the Tribunal are entitled to expect the Tribunal to take timely action to resolve complaints of discrimination brought before it.
12The Tribunal has generally deferred applications where there is an ongoing proceeding based on the same facts and human rights issues. Where the parties are already engaged in a concurrent legal proceeding in which they are raising the same human rights issues before a decision-making body with the authority to make determinations about those issues, the orderly administration of justice favours deferral to the other proceeding. In such a scenario, the Tribunal’s normal approach is to defer to the other proceeding.
13In this case, there is no substantial overlap between the proceeding before the Landlord and Tenant Board and the Application. The Landlord and Tenant Board matter concerns rental arrears. The Application concerns allegations of discrimination. The applicant has indicated that she has not and will not raise any issues in the Application before the Landlord and Tenant Board. The fact that the applicant requested accommodation in the Landlord and Tenant Board proceeding does not mean that issues of accommodation are before the Board for adjudication. There is no information before me that the applicant’s environmental sensitivities were a factor in her rental arrears. In any event, it is unknown at this time whether the Landlord and Tenant Board matter is still ongoing. If it is not, there is no proceeding to defer the Application to.
14For these reasons, the deferral request of the TCHC is denied.
order
15The individual respondent is removed from the Application.
16The respondents’ request for a summary hearing is denied.
17The TCHC’s deferral request is denied.
18As the parties have consented to mediation, the file will be put in the mediation queue. I would note that this matter has been previously scheduled for mediation. In the event the mediation does not proceed on the newly scheduled date, the matter will be put in the hearing queue.
19I am not seized of this matter.
Dated at Toronto, this 8th day of December, 2016.
“Signed by”
Jennifer Scott
Vice-chair