Ross v. Dykstra Brothers Electric Limited, 2016 HRTO 514

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Howard Ross Applicant

-and-

Dykstra Brothers Electric Limited, Ralph Dykstra and William Dykstra Respondents

A N D B E T W E E N:

Howard Ross Applicant

-and-

Landlord Legal Inc. and Paul Smith Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: April 20, 2016 Citation: 2016 HRTO 514 Indexed as: Ross v. Dykstra Brothers Electric Limited

WRITTEN SUBMISSIONS

Howard Ross, Applicant Self-represented

Dykstra Brothers Electric Limited, Ralph Dykstra and William Dykstra, Landlord Legal Inc. and Paul Smith, Respondents David Strashin, Counsel

1These Applications allege reprisal and discrimination with respect to accommodation because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A hearing of these Applications began on January 20, 2016, at which time the applicant made his opening statement, confirming that his allegations were accurately summarized in Interim Decision 2015 HRTO 989. Mediation-adjudication was attempted but did not resolve the Applications.

3New dates are scheduled for April 21 and 27, 2016, to continue the hearing.

4In a Case Assessment Direction dated February 3, 2016, the Tribunal directed the parties to file submissions, first the respondents and then the applicant, on whether what is called "absolute privilege" attaches to the actions and documents of the respondents in previous eviction proceedings and other civil proceedings that are at issue in at least some of the applicant's allegations. The Tribunal also directed the applicant to confirm if he was seeking to amend his Applications, as he indicated on January 20, 2016 that he intended to do.

5The respondents filed their submissions, arguing not only that absolute privilege attaches to the respondents' actions and statements in and surrounding those other proceedings, but also that section 45.1 and subsection 34(11) of the Code combine with that privilege to justify the dismissal of all of the applicant's allegations in the Applications.

6The applicant was very active filing documents at the Tribunal, many of which were disorganized and repetitive, but he did not file the submissions in response to the respondents' submissions as directed in the February 3, 2016 Case Assessment Direction. Instead, he asked for an extension for those submissions; he requested answers to all kinds of questions which have already been answered by the Tribunal or are tantamount to asking the Tribunal for legal advice; he requested to add a personal respondent, C. April Stewart, who was until recently representing the respondents and who he had last year confirmed he did not wish to add; he requested more time to add submissions on why he would like to add her as a party; and he warned that he will soon be making a request to amend his Application(s) to add allegations.

7In a Case Assessment Direction dated March 14, 2016, the Tribunal granted an extension of time to the applicant, until March 24, 2016, to respond to the respondents' submissions, and to clarify his request to add C. April Stewart as a personal respondent. The Tribunal warned the applicant that although a party may file a Request for Order During Proceedings at any time, the Tribunal rarely allows amendments at a late stage in proceedings, particularly where proposed amendments substantially add to the complexity of the hearing. The Tribunal also granted the respondents an opportunity to reply to the applicant's submissions within 10 days of the applicant filing them.

8The applicant filed his submissions with respect to absolute privilege on March 24, 2016, but his submissions do not address the issues raised by the respondents in their submissions with respect to s. 45.1 and s. 34(11). Also, the applicant filed 58 pages of dense submissions entitled in his email attachment line, "Add Stewart". They provide facts supporting his allegations for the most part included in previous documents, and statements of law that do not appear to be connected to the law governing whether parties might be added. The applicant has not filed a Request for Order During Proceedings to amend the Application.

9The respondents did not file reply submissions. Instead, they filed an Application for Judicial Review to the Superior Court of Justice (Divisional Court), and, pursuant to that Application, asked the court to schedule a Motion on an urgent basis. The Court declined to schedule the motion.

decision on request to add a party

10The applicant's request to add Ms. Stewart as a respondent is denied. I note that the Tribunal asked the applicant in a Case Assessment Direction of August 21, 2015 to clarify whether he wished to add her as a respondent and he confirmed on September 3, 2015 that he did not. It strikes me as counter-productive to add her now after that indication, particularly given the late stage of these proceedings where the hearing has already begun. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 ("Sigrist") at para. 42:

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.

11In Sigrist, also at para. 42, the Tribunal went on to set out the general principles that apply to this issue:

... 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.

12The reasons for denying the applicant's request, then, are not only the late stage of the request and the danger of adding even more complexity to this hearing, but also the fact that there appears to be no issue as to whether the corporate respondent already named as a respondent may respond to or remedy an alleged Code violation if one is found. See also Persaud v. Toronto District School Board, 2008 HRTO 31.

directions

13At the commencement of the hearing tomorrow, the parties will once again be offered an opportunity to attempt, for a brief period of time, to resolve the Applications through mediation-adjudication pursuant to Rule 15A of the Tribunal's Rules of Procedure. If the parties do not agree to mediation-adjudication, or if it fails to resolve the Applications, then the parties will be required to speak to the issues of absolute privilege, s. 45.1 and s. 34(11) of the Code. In the event that the Tribunal is not prepared to issue a decision at the hearing with respect to those issues and whether certain allegations should be dismissed as a result, then the applicant must be prepared to testify about the first three of the six allegations identified in paragraph 6 of Interim Decision 2015 HRTO 989, issued July 24, 2015.