HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shawn Comer
Applicant
-and-
Skyline Living/Skyline Management Inc. and Alaina Giankos
Respondents
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Comer v. Skyline Living/Skyline Management Inc.
INTRODUCTION
1The purpose of this Interim Decision is to address the respondents’ request to remove the individual respondent as a party to this Application and to defer the Application.
BACKGROUND
2This Application alleges reprisal and discrimination with respect to housing because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
3The respondents request that the personal respondent be removed as a party.
Request to Remove the Individual Respondents
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 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.
5The 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 is 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.
6The respondents submit that the corporate respondent is liable for the same conduct that applicant alleges against the personal respondent, and would be vicariously liable for it.
7In addition, the corporate respondent is able to respond to the applicant’s allegations. The respondent asserts that the personal respondent is not central to the issues raised in the Application, and at all times, the personal respondent was acting as an employee of the corporate respondent. Further, there are no allegations made against the personal respondent specifically. In the respondents’ view, the applicant would suffer no prejudice if the personal respondent was removed as a party.
8The applicant submits that because the corporate respondent has no eyes and mind, the personal respondent is the best choice to respond to this Application, for the sake of accountability. He submits the personal respondent should remain a party because she was a manager of the corporate respondent at the time the alleged events took place, and she acted with malice, or at least indifference.
9I agree with the respondents’ submissions. In my view, considering all the circumstances, it is not necessary to involve the personal respondent as an individual respondent in order to have a fair, just and expeditious resolution of the merits of the Application given that the corporate respondent accepts vicarious liability for her alleged acts; that the corporate respondent also will be liable for the same acts; that the applicant disclosed no allegations specifically against the personal respondent in the Application; and that there is no prejudice to the applicant if the personal respondent is removed as a party.
10The respondents’ request to remove the personal respondent to the Application is therefore granted. The style of cause shall be amended accordingly.
Request to Defer
11The respondent requests that this Application be deferred pending the completion and outcome of a related Landlord and Tenant Board eviction application. Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application.
12The respondent submits that the corporate respondent commenced an eviction proceeding against the applicant in December, 2014. The parties have had four days of hearing and the matter was set to resume on February 26, 2016.
13The applicant submits he is not invoking the Code as a defence in the eviction proceeding, and he withdrew any such allegations in the Landlord and Tenant Board eviction proceeding.
Analysis and Decision
14The Tribunal has the discretion to defer proceedings before it, and has applied this discretion where there are parallel legal proceedings between the parties. While deferral is not automatic, it is granted to avoid adjudicative duplication and inconsistent results. Some factors that have been considered in deciding whether to defer are: the subject matter of the other proceeding; the nature of the other proceeding; the types of remedies available in the other proceeding; and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.
15In my view, the substantial overlap between the facts and issues in these two proceedings favours deferral in this case. While the two proceedings involve different legal claims, both proceedings challenge the same actions or inactions by the respondents. In such circumstances, there is a clear potential for inconsistent factual findings and substantial adjudicative duplication in the two proceedings. In the circumstances of this case, the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of Landlord and Tenant Board matter.
16In this case, the factual underpinnings of these proceedings are the same. Despite the fact that the applicant has not pleaded the Code in the Landlord and Tenant Board application, the factual issues are the same in both proceedings.
17I am of the view that a deferral is appropriate in this case given that the proceedings before the Landlord and Tenant Board likely will address facts and issues in this Application. There is a strong likelihood of the possibility of inconsistent findings of fact if this Application is allowed to proceed at this time.
18Once the parties have received the result of the Landlord and Tenant Board proceeding, this matter may be brought back on. The Tribunal directs the parties’ attention to this Tribunal’s Rules 14.3 and 14.4 which outline the process to bring this Application back before the Tribunal after the resolution of the Landlord and Tenant Board proceedings. Rules 14.3 and 14.4 state:
14.3 Where a party wishes the Tribunal to proceed with an Application which has been deferred the request must be made in accordance with Rule 19.
14.4 Where an Application was deferred pending the outcome of another legal proceeding, a request to proceed under Rule 14.3 must be filed no later than 60 days after the conclusion of the other proceeding, must set out the date the other legal proceeding concluded and include a copy of the decision or order in the other proceeding, if any.
ORDER
19The Tribunal orders:
a. The personal respondent is removed as a party to the Application.
b. This matter is deferred pending the completion of the Landlord and Tenant Board eviction proceeding.
20I am not seized of this matter.
Dated at Toronto, this 31st day of March, 2016.
“Signed by”
Dawn J. Kershaw
Vice-chair