Brar v. 2369503 Ontario Inc. o/a Pearson Vision Limousine, 2016 HRTO 81

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Brar

Applicant

-and-

2369503 Ontario Inc. o/a Pearson Vision Limousine

Respondent

INTERIM DECISION

Adjudicator: Keith Brennenstuhl

Date: January 20, 2016

Citation: 2016 HRTO 81

Indexed as: Brar v. 2369503 Ontario Inc. o/a Pearson Vision Limousine

WRITTEN SUBMISSIONS

Jack Brar, Applicant

Haider Bahadur, Counsel

2369503 Ontario Inc. o/a Pearson Vision Limousine, Respondent

Stephanie Pope, Counsel

Introduction

1This Interim Decision deals with a Request for Order During Proceedings (the “Request”) by the applicant to amend the Application, to add individual respondents and for particulars.

2This Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) was filed with the Tribunal on December 1, 2014 and delivered to the respondent on January 21, 2015. At the time of filing the Application, the applicant was self-represented. On April 29, 2015, the applicant filed a Reply. At the time of filing the Reply the applicant was represented by counsel. On May 6, 2015, the Tribunal issued a Case Assessment Direction directing that a summary hearing by conference call be scheduled to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

3The summary hearing was held on September 10, 2015. Counsel for the respondent submitted that the applicant’s allegations do not show a link between the events raised and a protected ground under the Code. She pointed out that the applicant failed to identify in the Application any ground of discrimination except for reprisal or threat of reprisal.

4Counsel for the applicant indicated that the applicant was not represented at the time he filed his Application. Counsel advised that since he was retained new facts or evidence that could potentially be determinative of the case had been obtained.

5Under the circumstances, the hearing was adjourned sine die and the applicant was directed to forthwith file with the Tribunal a Request for Order During Proceedings requesting that the Application be amended to reflect the new evidence.

6On October 28, 2015, the applicant filed the Request seeking to amend the Application, to add individual respondents and seeking particulars.

Request to amend

7The respondent opposes the Request to amend on various grounds. The respondent argues that the proposed amendments do not comply with Rule 6.2. I agree. Rule 6.2 reads as follows:

A complete Application must provide the information requested in every section of the Application form and the related supplemental form(s) and Form 4 (if applicable), and must set out all the facts that for the substance of the allegations of discrimination including the circumstances of what happened, where and when it happened, and the names of person(s) or organization(s) alleged to have violate the Applicant’s rights under the Code.

8It would not be appropriate to permit an amended Application that does not comply with Tribunal’s requirement for a detailed explanation of the facts upon which a party is relying. In support of the Request to amend, the applicant states as follows:

We were able to interview witnesses who confirmed that the management at Pearson Vision Limousine did infact (sic) in engaged in discrimonatory (sic) practises based on ethnic origin and race.

9The proposed amendment is essentially a restatement of the allegations in the original Application but with even less detail. In relation to many allegations, the applicant does not state when the alleged discrimination/harassment occurred, where it occurred, who carried out or was involved in the alleged discrimination/harassment or provide any other information other than vague references.

10It would be counter-productive to replace or complement the existing allegations with vague and repetitive claims. This is not merely a technical concern: it would be unfair to the respondent to require it to attempt to respond to such vague allegations. It would not be appropriate to grant leave to amend an Application to a form that does not comply with the Tribunal’s requirements for detailed allegations and explanations. See Sayed-Zada v. Renin Corp., 2011 HRTO 2075.

11The proposed amendment advances a new theory of discrimination based on ethnic origin and race. The applicant alleges that a witness was questioned on many occasions by the respondent as to why he hired the applicant who is of East Indian descent as opposed to someone who is Pakistani. Like the other allegations in the proposed amendment, this allegation is vague.

12Moreover, the allegation is in my view, outside the scope of the original Application. The original application made no allusion to discrimination based on ethnic origin and race. Similar circumstances can be found in Arthur v Canadian Tire Corporation, 2012 HRTO 1904:

[25] If the applicant had set out the factual allegations underlying his racial discrimination claim, but failed to check off the correct boxes to indicate the prohibited grounds of race and colour, I would not hesitate to grant the applicant’s request to amend. In this case however, the applicant seeks to substantially alter the case against the respondent by adding allegations that are completely new and unrelated to those contained in his original Application: and he does so at a time when the provisions of the Code would prevent him from filing a fresh Application based on such allegations. In the circumstances it would not be fair and expeditious to permit the applicant to amend the Application in the manner proposed.

13The proposed amendment is so vague, it is unclear if it could form the basis of a timely fresh application; however, it is clear that the allegation is new and unrelated to the allegations in the original filing. In my view “it would not be fair and expeditious to permit the applicant to amend the Application in the manner proposed”.

14For these reasons the Request to amend the Application is denied.

Request to add individual respondents

15The applicant seeks to add two individuals as respondents. Both were limousine drivers and shareholders of the respondent and one held the position of Chief Operations Officer as well.

16Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add or remove a party. In Sigist 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 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 the individual if an infringement is found.

17The applicant has not provided the Tribunal with any reason for adding the proposed personal respondents let alone a compelling reason. As such, there is no justification for adding the proposed personal respondents.

18That being said, I note that the proposed personal respondents have not been served with the Request and, as far as the Tribunal knows, has had no notice of the Request to add them as parties to the Application. In these circumstances it would be unfair to add the proposed individual respondents. See S.G. v. D.C. 2010 HRTO 2146 at paras 5 – 6.

Request for particulars

19Although the applicant has indicated on the Request form that he is requesting particulars it would appear that he is actually seeking production of various call recordings. The parties’ obligation to disclose will be triggered by the Notice of Hearing in accordance with Rule 16. It would be premature to make an order of this nature at this point in the proceeding.

order and direction

20The applicant’s Request to amend the Application, to add personal respondents as parties to the application and for particulars is denied.

21The Registrar will schedule a half-day resumption of the summary hearing by conference call.