Sweeney-Tobin v. Ganeshalingam, 2016 HRTO 972

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jocelyne Sweeney-Tobin, Matthew Sarty, Elijah Sarty, and Alexander McKean Applicants

-and-

Pranavan Ganeshalingam, Ardavan Ganeshalingam, and Vinayagamoorthy Ganeshalingam Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: July 25, 2016 Citation: 2016 HRTO 972 Indexed as: Sweeney-Tobin v. Ganeshalingam

WRITTEN SUBMISSIONS

Jocelyne Sweeney-Tobin, Matthew Sarty, Elijah Sarty, and Alexander McKean, Applicants Bradley Truax, Representative

Pranavan Ganeshalingam and Ardavan Ganeshalingam, Respondents Pranavan Ganeshalingam, Representative

Introduction

1The purpose of this Interim Decision is to deal with the applicants’ requests to consolidate and hear the Applications together, add an individual as a respondent, and amend the Applications.

BACKGROUND

2On August 24, 2015, the applicants, who were tenants in a rental house, filed Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents, Pranavan (“P.”) and Ardavan (“A.”) Ganeshalingam, discriminated against them with respect to the occupancy of accommodation because of their age and relationship and association with persons identified by a prohibited ground of discrimination.

3The applicants also filed Requests for an Order During Proceeding (“RFOPs”) to consolidate and hear the Applications together.

4On August 31, 2015, the applicants filed amended narratives to the Applications. The Tribunal served the Applications with the amended narratives and the RFOPs on the respondents, P. and A. Ganeshalingam.

5On October 16, 2015, the respondents, P. and A. Ganeshalingam, filed Responses, which denied the allegations of discrimination, and stated that there are incidents in the Applications which misidentified Vinayagamoorthy (“V.”) Ganeshalingam as A. Ganeshalingam. The Responses identified P. Ganeshalingam as the Property Manager, A. Ganeshalingam as the Landlord, and V. Ganeshalingam as the father of P. and A. Ganeshalingam, who occasionally attended the property to take measurements for contractual work and to oversee renovation projects.

6On November 23, 2015, the applicants filed further RFOPs, which requested that V. Ganeshalingam be added as a respondent to the Applications, that the narratives of the Applications be amended to correct the misidentification of V. Ganeshalingam as A. Ganeshalingam, and that the Application of Ms. Sweeney-Tobin be amended to correct the spelling of her first name.

7On January 12, 2016, the respondents, P. and A. Ganeshalingam, filed Responses to the applicants’ RFOPs, which opposed consolidating and hearing the Applications together, opposed adding V. Ganeshalingam as a respondent to the Applications, and consented to amending the Application of Ms. Sweeney-Tobin to correct the spelling of her first name.

8On May 10, 2016, the applicants filed further RFOPs, which requested that the narrative of the Applications be further amended to include an allegation of discrimination that the respondents required them to show proof, on a consistent basis, that they had paid all of their monthly bills.

9The respondents did not file Responses to these last RFOPs.

ANALYSIS

10I will deal first Ms. Sweeney-Tobin’s request that her Application be amended to correct the spelling of her first name. The respondents consent to her request. Therefore, the request is granted, and the title of proceeding is amended accordingly.

11I will deal next with the applicants’ request that their Applications be consolidated and heard together. In support of their position, they pointed out that the Applications involve the same set of facts. The respondents agree that the Applications involve the same set of facts, but oppose consolidating and hearing the Applications together. However, they did not clearly explain why there should be four separate hearings dealing with the same set of facts, rather than one hearing.

12Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order to provide for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear Applications together.

13In Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:

(a) The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;

(b) The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and

(c) Whether there are common issues of fact or law.

14In my view, the Applications should be consolidated and heard together. There are clearly common and overlapping issues of fact and law, and a public interest in avoiding a multiplicity of proceedings. Furthermore, there is no evidence that consolidating and hearing the Applications together will result in prejudice to any person.

15I will deal next with the applicants’ request that V. Ganeshalingam be added as a respondent to the Applications. The respondents, P. and A. Ganeshalingam, oppose the request on the basis that V. Ganeshalingam was not involved with the business renting the property, and was simply present at the house on a few instances to do a favour for P. and A. Ganeshalingam.

16Rule 1.7(b) of the Tribunal’s Rules provides that the Tribunal may add a party. In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal set out the following test for adding a respondent at para. 12:

(…) 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?

The application of the first stage involves considering whether there are allegations made in the Application or amendments sought to it that could lead to a finding that the Code was infringed. At the second stage, the Tribunal applies the Persaud factors, which focus in most cases on whether there is an organizational respondent named that can effectively remedy the infringement and the centrality of the allegations against the proposed respondent. 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, prejudice to the other parties, and the need for and likely effectiveness of a remedial order against the proposed respondent if the application is allowed.

17In the case at hand, only the first and third questions are applicable because there is no organization respondent.

18The applicants’ request is granted because there are allegations in the Applications that could support a finding that V. Ganeshalingam violated the Code, the hearing of the merits of the Applications has not been scheduled yet, the applicants intended to name him as a respondent in the Applications but misidentified him, and there is minimal prejudice to the respondents or him in naming him as a respondent. Furthermore, the respondents’ factual allegations about his involvement in the business renting the property and his presence at the house are matters in dispute. P. and A. Ganeshalingam will remain as respondents because, according to them, they are the Property Manager and the Landlord, respectively.

19Flowing from this, the applicants’ request that the narratives of the Applications be amended to correct the misidentification of V. Ganeshalingam as A. Ganeshalingam is also granted.

20I will deal last with the applicants’ request that the narrative of the Applications be further amended to include an allegation of discrimination that the respondents required them to show proof, on a consistent basis, that they had paid all of their monthly bills.

21In determining a request to amend an Application, the Tribunal will consider a number of factors, including the nature of the requested amendment, the conduct of the party seeking the amendment, the prejudice to the respondent, and the impact on the course of the hearing. See Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16; Dube v. Canadian Career College, 2008 HRTO 336; Wozeilek v. 7-Eleven Canada, 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.

22The applicants’ request that the Applications be amended to include a new allegation of discrimination is denied for the following reasons. There is no reason, aside from error and omission, that the allegation was not included in the original Applications; this new request is the latest in a series of similar requests based on error and omission; it has reached the point where it is unfair to the respondents to have to respond to another such request; and the applicants’ ongoing requests to amend their Applications is delaying the processing of the case and the scheduling of a hearing.

23All that said, during the hearing, the applicants will be allowed to rely upon the alleged facts in the requested amendment as evidence to support the original allegations of discrimination in the Applications.

24The applicants should be aware that, for reasons just set out, the Tribunal is unlikely to grant a further request to amend the Applications unless there is a compelling reason to do so. I would hope that the applicants would agree that it is in all the parties’ interest to avoid further delays in processing this case, and schedule it for a hearing as soon as possible.

25Finally, the Tribunal directs the respondents within seven days of this Interim Decision to notify the Registrar in writing, with a copy to the applicants, whether the Responses filed by the respondents, P. and A. Ganeshalingam are inclusive of V. Ganeshalingam, and if so, whether they will be filing amended Responses to the Applications, or, alternatively, whether V. Ganeshalingam will be filing separate Responses to the Applications. Amended or separate Responses, if deemed necessary, shall be filed within 35 days of the date of this Interim Decision. The applicants shall file amended or separate Replies within 14 days of receiving amended or separate Responses.

ORDER

26The Tribunal makes the following orders and directions:

1. Ms. Sweeney-Tobin’s request that her Application be amended to correct the spelling of her first name is granted, and the title of proceeding is amended accordingly.

2. The applicants’ request that their Applications be consolidated and heard together is granted.

3. The applicants’ request that V. Ganeshalingam be added as a respondent to the Applications is granted. P. and A. Ganeshalingam will remain as respondents.

4. The applicants’ request that the narratives of the Applications be amended to correct the misidentification of V. Ganeshalingam as A. Ganeshalingam is granted.

5. The applicants’ request that the Applications be amended to include a new allegation of discrimination is denied, but during the hearing, the applicants will be allowed to rely upon the alleged facts in the requested amendment as evidence to support the original allegations of discrimination in the Applications.

6. Within one week of the date of this Interim Decision, the respondents shall notify the Tribunal’s Registrar in writing, with a copy to the applicants, whether the Responses filed by the respondents, P. and A. Ganeshalingam, are inclusive of V. Ganeshalingam, and if so, whether they will be filing amended Responses to the Applications, or, alternatively, whether V. Ganeshalingam will be filing separate Responses to the Applications.

7. Amended or separate Responses, if deemed necessary, shall be filed within 35 days of the date of this Interim Decision.

8. The applicants shall file an amended or separate Reply within 14 days of receiving amended or separate Responses.

27I am not seized of this matter.