HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rozza Kovaleva
Applicant
-and-
Olga Pichakchi and Metropolitan Toronto Condominium Corporation 1000
Respondents
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Kovaleva v. Pichakchi
WRITTEN SUBMISSIONS
Rozza Kovaleva, Applicant
Self-represented
Olga Pichakchi, Respondent
Timothy Duggan, Counsel
Board of the Metropolitan Toronto Condominium Corporation 1000 and James Hennessy, Proposed Respondents
Timothy Duggan, Counsel
INTRODUCTION
1This is an Application filed on June 27, 2014, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging harassment and discrimination in the provision of services because of age. The applicant alleges that the named personal respondent, Olga Pichakchi, discriminated against her because of her age in the context of her membership on the Board of Directors (the “Board”) of the Metropolitan Toronto Condominium Corporation 1000 (“MTCC”). The named personal respondent was, at the time of the alleged events, also a member of the Board.
2The applicant filed a Request for an Order During Proceedings dated March 19, 2015, seeking to amend the Application (“first request to amend”) as follows:
a) by adding allegations of discrimination by a vocational association (section 6 of the Code) and reprisal (section 8 of the Code);
b) by adding the Board and James Hennessy as respondents; and
c) by clarifying the allegations made in the Application.
3The named personal respondent filed a Response to a Request for an Order During Proceedings and a Request for a Summary Hearing, both dated March 20, 2015, maintaining that the Application has no reasonable prospect of success. The named personal respondent also objects to the applicant’s request to amend and to the addition of the Board and James Hennessy as respondents.
4The applicant filed a second Request for an Order During Proceedings, dated April 1, 2015, seeking again to add allegations based on sections 6 and 8 of the Code, to add the Board and Mr. Hennessy as respondents and to amend the Application (“second request to amend”). The second request to amend repeats the first request to amend but adds submissions related to the allegation of reprisal.
5The Tribunal deferred the Application on May 26, 2015 pending the conclusion of a Small Claims Court proceeding. The Application was re-activated on February 25, 2016.
6On February 25, 2016, the named personal respondent filed another Request for a Summary Hearing (“request for summary hearing”) submitting that the Application has no reasonable prospect of success.
7On March 2, 2016, the applicant filed a Response to the Request for a Summary Hearing objecting to the summary hearing.
8This Interim Decision addresses the following:
a) The applicant’s requests to amend her Application;
b) The applicant’s requests to add the Board and James Hennessy as respondents;
c) The request for summary hearing.
ANALYSIS AND DECISION
Requests to Amend the Application
9Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may allow any filing to be amended.
10In deciding requests to amend applications 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 respondents. See, for example, 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.
11The applicant’s proposed amendments center on adding allegations of discrimination by a vocational association (section 6 of the Code) and reprisal (section 8 of the Code). The applicant also uses the requests to amend to clarify her allegations and, in the second request to amend, makes submissions related to the alleged reprisal against her.
12Section 6 of the Code applies to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession. Corporations and condominium boards of directors do not meet the definition of a vocational association under the Code.
13Section 8 of the Code provides a right to claim and enforce rights under the Code without reprisal or threat of reprisal. Although the applicant proposes to add an allegation that there was reprisal against her for enforcing her rights under the Code, she provides no factual basis for such allegation. She argues that she became a victim of reprisal when she decided to oppose the Board’s decision to terminate the MTCC superintendent. However, the applicant does not identify any right under the Code that she attempted to claim or enforce and that was the basis of reprisal.
14I am not satisfied that the Application should be amended to include allegations of discrimination on the basis of membership in a professional association or allegations of reprisal or threat of reprisal.
15Other than the two proposed amendments mentioned above and the request to add respondents addressed below, the proposed amendments are founded on the same factual basis as the Application but are presented more clearly and as a result are more accessible. The hearing dates have not been scheduled and in my view there would be adequate time for respondents to address amendments to the Application. In addition, the named personal respondent has not argued that she would be prejudiced by the amendments, and I find that there is no apparent prejudice to respondents in granting the Request.
16I am satisfied that the applicant should be permitted to rely on the following paragraphs contained in Schedule A of the April 1, 2015 request to amend:
a) Paragraphs 2 and 3;
b) Paragraphs 5 to 29;
c) Paragraphs 34 to 40.
Request to Add Respondents
17The applicant seeks to add the Board as an organizational respondent and James Hennessy as a personal respondent.
18In addition to the alleged harassment and discrimination by the named respondent, the applicant alleges that she experienced severe discrimination and harassment from a number of Board members. She also alleges that she was the subject of adverse decisions by the Board, such as being removed as a signatory of cheques for the condominium and being removed from the Board altogether.
19The applicant alleges that James Hennessy witnessed and participated in interactions between the applicant and the named respondent. The applicant also alleges that he was the President of the Board at the time of the incidents.
20The Tribunal held in Smyth v. Toronto Police Services, 2009 HRTO 1513 (“Smyth”), that when determining a request to add a respondent, the Tribunal should consider the following three questions:
(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?
(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?
(3) Would it be fair, in all the circumstances, to add the proposed respondent?
21The first stage of the analysis involves considering whether there are allegations made in an application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, which focus principally on whether there is an organization that is part of the proceeding and is able to take responsibility for the conduct, and whether the conduct of the individual respondent is a central issue in the proceedings. At the third stage, the Tribunal may consider a variety of factors, including the effects on the hearing process of adding the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and prejudice to the other parties.
Adding the Board
22After considering the Smyth factors, I find that it is appropriate to add the MTCC as a respondent to the Application. The Board of MTCC is at the center of this dispute. The applicant alleges that she experienced severe discrimination and harassment from Board members and the Board may be responsible for violations of the Code because of adverse treatment of the applicant. Although her allegations focus largely on the named respondent’s inappropriate comments and conduct, there are a number of alleged incidents that appear to involve the Board directly, such as the applicant’s removal as a signatory of cheques and the applicant’s removal from the Board.
23Since the Application has not been scheduled for hearing, I consider it fair in all the circumstances to add MTCC as a respondent.
Adding James Hennessy
24When considering the second factor set out in Smyth, the Tribunal focuses mainly on whether the corporate respondent is responsible for the conduct of the proposed personal respondent, and whether there is a compelling legal reason for an individual to be named as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his conduct is a central issue in the case and extends beyond implementing organizational policies or practices.
25Having considered the factors set out in Smyth, I do not find it appropriate to add Mr. Hennessy as a personal respondent. The only allegations against Mr. Hennessy in the Application and Requests for Order During Proceedings are that he witnessed some of the interactions between the applicant and named respondent and laughed during one interaction. There is no indication that Mr. Hennessy’s conduct was at any time a central issue in the case and extended beyond his role as President or member of the Board.
No reasonable prospect
26The named personal respondent also requested a summary hearing on the question of whether the Application should be dismissed because there is no reasonable prospect that the allegations will succeed. I have decided not to hold a summary hearing.
27Rule 19A.5 of the Rules of Procedure provides that the Tribunal need not give reasons for a decision not to hold a summary hearing following a party’s request.
28The Tribunal will proceed with the hearing on the merits of the Application. I anticipate that one day will be sufficient to hear this case.
Order
29The Tribunal orders the following:
a) The applicant’s request to add vocational associations as an area of discrimination and to add reprisal as a ground of discrimination is dismissed.
b) The applicant may continue to rely upon the allegations contained in Schedule A of the April 1, 2015 Request for Order During Proceedings, paras. 2, 3, 5 to 29 and 34 to 40.
c) The respondents may file a Response or an amended Response to respond to the amendment to the Application within 30 days from the date of this Interim Decision. If the applicant wishes to file a Reply to any Response or amended Response, she must do so within 14 days of receiving a Response or an Amended Response from the respondents.
d) MTCC is added as a respondent to this Application and will be provided with a copy of the Application, the Response, the Reply, the second request to amend, the applicant’s disclosure filed on March 20, 2015, the named personal respondent’s correspondence dated March 19, 2015 related to the disclosure of documents and a copy of this Interim Decision.
e) The style of cause is amended to add MTCC as a party.
f) The request to add Mr. Hennessy as a respondent is dismissed.
g) The request for a summary hearing is dismissed and a one day hearing will be scheduled.
30I am not seized of this matter.
Dated at Toronto, this 22th day of March, 2016.
“Signed By”
Josée Bouchard
Vice-chair