MacPherson v. Pagecorp-Peel Properties Inc., 2017 HRTO 1090

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Susan MacPherson Applicant

-and-

Pagecorp-Peel Properties Inc., Oxford Properties Group Inc., OPGI Management GP Inc., and Mobidul Baig Respondents

INTERIM DECISION

Adjudicator: Esi Codjoe Date: August 21, 2017 Citation: 2017 HRTO 1090 Indexed as: MacPherson v. Pagecorp-Peel Properties Inc.

WRITTEN SUBMISSIONS

Susan MacPherson, Applicant Clara Matheson, Counsel

Pagecorp-Peel Properties Inc., Oxford Properties Group Inc., OPGI Management GP Inc., Mobidul Baig, Respondents Kate McNeill-Keller, Matthew Demeo, Jeffrey Feiner, Counsel

1The purpose of this Interim Decision is to address the applicant’s request to add an additional respondent to the Application.

2The applicant filed an Application alleging discrimination because of sex, including sexual harassment and pregnancy, and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). The applicant alleges that she was sexually assaulted and harassed by one of the organizational respondents’ employees in her rental unit.

3The applicant has requested the addition of Mobidul Baig, an employee of one or more of the organizational respondents, as a personal respondent to the Application. Mobidul Baig is the alleged perpetrator of the sexual assault/harassment.

4The applicant served her request to add a personal respondent, and a copy of the Application on Mobidul Baig on July 19, 2017. Mobidul Baig filed a written response to the applicant’s request.

Decision

5When determining a request to add a respondent, the Tribunal considers 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?

See Smyth v. Toronto Police Services (“Smyth”), 2009 HRTO 1513.

6The application of the first stage involves considering whether there are allegations made in the Application that could lead to a finding that the proposed respondent violated the Code. At the second stage, the Tribunal applies the factors set out in Persaud v. Toronto District School Board (“Persaud”), 2008 HRTO 31, at para. 5, which focus principally on whether there is an organizational respondent who is deemed liable for the proposed personal respondent’s conduct and whether the conduct of the proposed personal respondent is a central issue in the proceedings. 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, and any prejudice to the other parties.

7The applicant submits that she is a person with disabilities. She has a trustee, as well as a support worker. The applicant submits that she did not previously list Mobidul Baig as a respondent as she did not initially know his name, and because she unknowingly received an incomplete copy of a police report.

8The organizational respondents and Mr. Baig submit that the alleged assault occurred on April 7, 2016 yet the Application was not filed until April 6, 2017. Further, the Request for an Order during Proceedings was filed on July 4, 2017. The organizational respondents and personal respondent question why the applicant did not identify the alleged assaulter until 15 months after the alleged incident. They note that the applicant had sufficient time to address these issues earlier, and that she has not provided a reasonable explanation for why she did not file her application prior to April 6, 2017. The respondents submit it would be inappropriate to add the individual respondent at this time. Lastly, the organizational respondents do not accept vicarious liability for any of Mr. Baig’s alleged acts.

9Applying the criteria outlined in Smyth and Persaud. It would be fair and just to grant the applicant’s request to amend the application to add Mobidul Baig as a personal respondent. The central issue in this case is Mr. Baig’s alleged behaviour on a specific date. The nature of the allegations are such that if the Tribunal finds that there has been an infringement of the Code, it may be appropriate to award damages against the personal respondent. The organizational respondents and Mr. Baig have not outlined any prejudice they would suffer as a result of the addition of a personal respondent, nor has the organizational respondent accepted vicarious liability on Mr. Baig’s behalf. This means that organizational respondents are not accepting financial liability for any of Mr. Baig’s alleged acts and under s.46.3 of the Code they may not be deemed vicariously liable for any harassment of Mr. Baig, although I make no determination on any question of liability at this time; all issues of liability are matters to be determined at a hearing on the merits. If the Tribunal makes a finding that there was a Code infringement, and Mobidul Baig is not named as a personal respondent, there is a danger that Tribunal would have no jurisdiction to award a remedy given the lack of a personal respondent.

10The organizational respondents and Mr. Baig query why the applicant waited more than a year to file her request to add a personal respondent. However, the applicant’s request was filed 3 months after the initial Application. Further, the request was filed 14 days after the organizational respondents filed their Response to an Application. The organizational respondents took the position that Mr. Baig is not a directing mind of any of the corporations, that the alleged act would fall outside the scope of Mr. Baig’s employment duties, and they would not accept vicarious liability for the alleged acts.

11Regarding the applicant’s delay in seeking to add the personal respondent, neither the organizational respondents nor Mr. Baig outlined any specific prejudice they would face from this delay. I can see no such prejudice as the organizational respondents and Mr. Baig have provided fulsome Responses to the Application, despite the applicant’s delay in bringing forth her claims and request. There is no basis on which I can find that there is any prejudice caused to Mr. Baig from the applicant’s delay in seeking to add him as a personal respondent in this case.

12As a final point, I note that this Application remains at a relatively early stage in the Tribunal’s process. A mediation is scheduled for October 27, 2017.

13Applying the factors set out above, I find that it is appropriate to add Mobidul Baig as a personal respondent.

order

14For the above reasons, Mobidul Baig is added as a personal respondent to the Application and the style of cause is amended accordingly.

15Mobidul Baig is directed to file a Response to the Application (Form 2) not later 21 days from the date of the Interim Decision. Mr. Baig must advise the Tribunal whether he agrees to attempt mediation in this case, and if so, whether he is available to attend the October 27, 2017 mediation scheduled with the applicant and the organizational respondents. The applicant may file an amended Reply to reply to any Response filed by Mobidul Baig within 7 days of receiving the Response from Mobidul Baig.

16I am not seized of this matter.