He v. Sienna Senior Living Inc., 2016 HRTO 632

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E E N:

Yunhong He

Applicant

-and-

Sienna Senior Living Inc., previously operating as

Leisure World St. George Nursing Home

Respondent

A N D B E T W E E E N:

Yunhong He

Applicant

-and-

Sandi Parker and Philippa Geddie

Respondents

INTERIM DECISION

Adjudicator: Mary Truemner

Date: May 11, 2016

Citation: 2016 HRTO 632

Indexed as: He v. Sienna Senior Living Inc.

APPEARANCES

Younhong He, Applicant

Self-represented

Sienna Senior Living Inc., previously operating as Leisure World St. George Nursing Home, Respondent

Elizabeth Bryce, Representative

Sandi Parker and Philippa Geddie, Respondents

Rina Li, Counsel

Introduction

1These Applications allege discrimination with respect to services because of disability, creed, age and association with a person identified by a protected ground contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

background

2The Applications deal with largely the same issues and in general complain that the applicant’s mother, Ms Gan, was prevented from practising her creed with the applicant by her nursing home and two staff members working there (File number 2013-15174-I), and by Sandi Parker and Philippa Geddie, who worked for the Public Guardian and Trustee (“PGT respondents”), one of whom was counsel for the PGT (File number 2013-15301-I). While the narrative accompanying the Application against the PGT respondents implies that the Application intends to name the PGT as a respondent, the applicant did not list the PGT as a respondent in that Application.

3As the Applications appeared to be framed it was not clear to the Tribunal that there is a service relationship between any of the respondents and the applicant as opposed to between Ms Gan and the various respondents. The applicant has not filed these Applications on behalf of her mother pursuant to section 34(5) of the Code. Accordingly, in a Case Assessment Direction (“CAD”) issued on October 16, 2013, the applicant was directed to confirm whether or not it was her intention that these Applications are filed on her behalf or on behalf of her mother.

4Submissions were received in response to this Direction, confirming that it was the applicant’s intent that the Applications were filed on behalf of herself and her mother. On February 26, 2014, the applicant was directed to file a Form 27, which would need to be signed by the applicant’s mother, confirming that the applicant’s mother consented to the applicant filing these Applications on her mother’s behalf.

5The applicant filed a Form 27 that was incomplete because it was not signed by the applicant’s mother. The applicant indicated on it that her mother could not keep her eyes open, cannot speak, and does not have the strength to hold a pen. Consequently, on August 25, 2014, the Registrar sent the following directions to the applicant:

Based on the written submissions filed along with the Form 27s, the HRTO also requires written clarification from you, advising whether your mother, Peiyu Gan, is able to complete and sign Section D of the Form 27s. If this is the case, then the Form 27s should to be re-submitted, completed fully, and signed by Peiyu Gan in Section D, as noted above, to the HRTO.

If this is not the case and your mother is unable to complete and sign the Form 27s, you must clarify this in writing to the HRTO and complete and file Form 4B (Litigation Guardian: Mental Incapacity) with the HRTO in the above-noted matters. Form 4B is completed by a person who seeks to be litigation guardian for a person who does not have mental capacity to make decisions in applications before the HRTO. Form 27 and Form 4B and instructions on completing the Forms can be located on the HRTO website at www.hrto.ca.

6On December 29, 2014, the Tribunal received a Form 4B for the applicant’s mother completed by the applicant. A Form 4B is to be used by an intended litigation guardian where the applicant lacks legal capacity, but the one filed by the applicant was both incomplete and indicated that her mother actually had capacity.

7On August 12, 2015, the Tribunal issued a CAD with directions that a preliminary hearing would be scheduled to deal with:

1. whether the Applications should be dismissed, in whole or in part, on the basis that there is no relationship involving services between the applicant and the respondents;

2. whether the Application in Tribunal File 2013-15301-I should name the corporate respondent for which Sandi Parker and Philippa Geddie work, and whether either Application should continue against the individual respondents; and

3. whether the applicant’s mother may be accepted as an additional applicant making the same allegations as indicated in the Applications filed by the applicant.

Preliminary hearing

Naming of Respondents

8Rule 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.

9The 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:

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?

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.

10At the preliminary hearing, the applicant argued that all of the personal respondents are properly named parties because she considers them to have caused tremendous damage to her mother by interfering with her ability to care for her mother, particularly to provide spiritual care in helping her mother do daily Falun Gong Buddha exercises.

11The respresentative of the nursing home, who was also its executive director, explained that the corporation operating the home and originally identified in the Application as “Leisure World St. George Nursing Home” (“Leisure World”) is now legally called “Sienna Senior Living Inc.” (“Sienna”). She argued that the personal respondents who were employed by Leisure World should not be parties to the proceedings because they acted within the scope of their duties during the time described by the Application. As well, she confirmed that Sienna takes responsibility for their actions, and is willing to be added as a respondent. While the applicant objected to the removal of the personal respondents, she did not object to Sienna being added.

12Given the assurance by the representative of Leisure World and Sienna that Sienna is the corporation that operates the home and that will assume the liability of its employees, Sienna is hereby added as a corporate respondent. Given that Leisure World and Sienna agree that their employees named as personal respondents were acting within the scope of their duties, and that Sienna is vicariously liable for their actions, the personal respondents employed by the home are removed as parties. I find that it is not necessary to have the employees included as respondents for a fair, just and expeditious resolution of the merits of the Application.

13The style of cause on the cover page of this Interim Decision has been amended accordingly.

Whether Service Relationship Exists between Applicant and Respondents

14Section 1 of the Code states:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

15The Tribunal has stated that section 1 of the Code must be interpreted broadly and purposively, including the definition of “with respect to services”. (See Landau v. Ontario (Finance), 2011 HRTO 1521, application for judicial review dismissed, 2012 ONSC 6926 (Div. Ct.); and Contini v. Rainbow District School Board, 2011 HRTO 1340 (“Contini”)). At the same time, the definition of “service” has some limits, so that, for example, it would not include mere interactions between an applicant and a respondent. (See Padayachee v. Peel Children’s Aid Society, 2010 HRTO 709, and Dubé v. Campeau, 2014 HRTO 377).

16In Braithwaite v. Ontario (Attorney General), 2005 HRTO 31 at para. 22, the Tribunal held that ““service” must mean something which is of benefit that is provided by one person to another or to the public”. This was cited with approval by the Divisional Court on appeal, (2007), 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 at para. 39.

PGT Respondents

17Counsel for the PGT respondents argued that they offered no service to the applicant. She argued that that the allegations against them pertain to their actions while adversaries in court proceedings involving the care of the applicant’s mother. In 2013, the PGT commenced an application to the Superior Court of Justice, seeking that it be appointed as temporary and permanent guardian of the personal care of the applicant’s mother, and terminating any current Powers of Attorney which named the applicant as attorney for her mother. The litigation resulted in a decision dated April 3, 2014, The Public Guardian and Trustee v. Gan et al., 2014 ONSC 2145, in which the PGT was named guardian of the person for Ms Gan, and made responsible for decisions relating to her personal care instead of the applicant being responsible. The decision noted, at paragraph 3, that the applicant’s mother was “incapacitated, incapable of self-care…and completely dependent on others for all activities of daily living.”

18The allegations respecting the PGT personal respondents were in the context of the adversarial court proceedings. I agree with the PGT respondents’ counsel that such interactions are not related to services as concerns the applicant. (See Cooper v. Pinkofskys, 2008 HRTO 390; and Jaconello v. Unger, 2010 HRTO 789 and 2010 HRTO 1251).

19The applicant argued that the PGT personal respondents were supposed to have consulted with her about her mother’s care, given her role in 2013 as her mother’s substitute decision maker (“SDM”) and her role helping understand what her mother’s wishes were. She also pointed to the above April 3, 2014 decision of the Superior Court which states, at para. 31:

I am sure that the PGT will be mindful of its obligations under s. 66(6) and (7) of the SDA, and will seek to facilitate regular personal contact between Ms. He and her mother, and will also consult with her from time to time regarding her mother’s care.

20Subsections 66(6) and (7) of the Substitute Decisions Act, 1992, S.O. 1992, c. 30 (“SDA”) state:

(6) The guardian shall seek to foster regular personal contact between the incapable person and supportive family members and friends of the incapable person.

(7) The guardian shall consult from time to time with,

(a) supportive family members and friends of the incapable person who are in regular personal contact with the incapable person; and

(b) the persons from whom the incapable person receives personal care.

21Section 66 of the SDA is clearly concerned with providing guidance to the guardian in its obligations to act in the best interest of the incapable person. I fail to see how the PGT’s obligations arising from the above subsections of section 66 of the SDA, or from the Superior Court’s reference to those subsections, establishes a relationship of services between the PGT respondents and the applicant. Encouraging the PGT respondents to ensure that family members have “regular personal contact” with the applicant’s mother, and encouraging the PGT respondents to consult with the applicant about her mother is clearly with respect to services that the PGT offered offers to the applicant’s mother, not the applicant.

22Having found that “with respect to services” does not apply to the relationship between the applicant and the PGT respondents, I find that the Tribunal has no jurisdiction to deal with the Application against Sandi Parker and Philippa Geddie, and it is dismissed. There is no need to deal with the other issues with respect to this Application.

Sienna

23The representative for Sienna agreed that the home offered services to the applicant when she operated under a Power of Attorney (“POA”) until May 19, 2013. After that point, Leisure World banned the applicant from the nursing home premises because it understood that the applicant was not capable of acting in the best interests of her mother.

24At this stage of the proceedings, I will not dismiss the Application against Sienna given that it took the position at the preliminary hearing that it did offer services to the applicant when it determined with her the care for the applicant’s mother. Applying a broad and purposive interpretation to “with respect to services”, I can see at this stage that it is arguable that Sienna offered services to the applicant. However, the Tribunal has not heard any evidence about those services, and until it does, the Tribunal is not making any finding of discrimination with respect to services against Sienna.

order

25The Application against Sandi Parker and Philippa Geddie (2013-15301-I) is dismissed.

26With respect to the Application against the Sienna respondents (2013-15174-I), which is not dismissed by this Interim Decision, the personal respondents who worked at Leisure World are removed and Sienna Senior Living Inc. replaces them as the sole remaining respondent.

next step

27There was insufficient time at the preliminary hearing for the parties to deal with the issue of whether the applicant’s mother, Ms. Gan, should be added as an applicant. Within 21 days, Sienna and the applicant may file further written submissions on this issue, and the Tribunal will deal with it in writing. The parties should take note of the applicant’s failure to comply with the Tribunal’s Case Assessment Directions and with directions from the Registrar with respect to Ms. Gan’s status and capacity. Also, if the PGT still acts as guardian of the person for Ms Gan, and is responsible for decisions relating to her personal care, then the PGT may need to be consulted with respect to the issue of whether Ms. Gan should be added as a party given that the Applications are primarily concerned with Ms Gan’s personal care.

28I am not seized.