HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gulaid Egeh
Applicant
-and-
Coopérative Place Verchères and Carmen Lalonde
Respondents
Angèle Gaudette
Applicant
-and-
Coopérative Place Verchères and Carmen Lalonde
Respondents
Gulaid Egeh
Applicant
-and-
Coopérative Place Verchères
Respondent
Angèle Gaudette
Applicant
-and-
Coopérative Place Verchères
Respondent
INTERIM DECISION
Adjudicator: Josée Bouchard
Indexed as: Egeh v. Coopérative Place Verchère
APPEARANCES
Gulaid Egeh and Angèle Gaudette, Applicants
Self-represented
Coopérative Place Verchères and Carmen Lalonde, Respondents
Michel R. Carré, Counsel
René Daoust, Respondent
Neil Milton, Counsel
introduction
1These are Applications filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2On November 5, 2015, the applicant Gulaid Egeh filed Application 2015-22500-I against the corporate respondent Coopérative Place Verchères (“the Coopérative”) alleging discrimination with respect to employment on the basis of ethnic origin, creed and family status (“Application 1”).
3On November 16, 2015, Gulaid Egeh filed Requests for an Order During Proceedings seeking to add two personal respondents, Carmen Lalonde, the Coopérative Coordinator, and René Daoust, an employee of Co-operative Housing Federation of Canada.
4On December 1, 2015, the applicant Angèle Gaudette filed Application 2015-22761-I against the Coopérative, Carmen Lalonde and René Daoust alleging discrimination with respect to employment on the basis of family status and association with a member of a protected group, Gulaid Egeh (“Application 2”).
5On January 11, 2016, Gulaid Egeh filed a Request for an Order During Proceedings seeking to amend the remedy and to add the ground of sex to the Application.
6On February 8, 2016, the Tribunal advised the parties that Applications 1 and 2 would be processed together.
7On March 3, 2016, the respondents filed a Request for Summary Hearing seeking the dismissal of Applications 1 and 2.
8On March 3, 2016, the respondents filed a Request for an Order During Proceedings seeking to remove of the personal respondent Carmen Lalonde.
9On April 7, 2016, the Tribunal advised the parties that Applications 1 and 2 would be consolidated.
10On December 7, 2016, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held to determine whether Applications 1 and 2 should be dismissed, in whole or in part, on the basis that they are untimely and/or because there is no reasonable prospect that all or part of the Applications will succeed.
11The CAD stated “In addition to these issues, the Tribunal may entertain submissions from the parties with respect to the Requests to add and remove respondents.”
12Gulaid Egeh filed Application 2017-26806-I on January 27, 2017 alleging reprisal or threat of reprisal with respect to housing (“Application 3”).
13Angèle Gaudette filed Application 2017-26807-I on September 9, 2017 alleging reprisal or threat of reprisal with respect to housing (“Application 4”).
14On June 5, 2017, the Tribunal issued a CAD directing that Applications 3 and 4 proceed to a summary hearing to determine whether the Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Applications or part of the Applications will succeed. The Tribunal also directed that Applications 3 and 4 be heard together with Applications 1 and 2 at the summary hearing.
15On August 16, 2017, the applicants filed a Request for an Order During Proceedings seeking to add the following to the Applications:
a. The Coopérative Board of Directors (“the Board”) to Applications 1, 2, 3 and 4;
b. Members of the Board Jean-François Pichette and Colette Lalonde to Applications 3 and 4;
c. Occupant and member of the Coopérative Maud Pichette to Applications 3 and 4;
d. Carmen Lalonde to Applications 3 and 4.
16The Tribunal held the summary hearing on August 17, 2017.
17At the summary hearing, the applicants made a request to amend Applications 1 and 2. That request is considered below.
18This Interim Decision addresses the following:
a. The requests to remove and add respondents;
b. The request to amend the Applications;
c. Whether the Applications should continue in the Tribunal process.
Background
19The Coopérative (also referred to as the “corporate respondent”) is a housing cooperative founded primarily for the Francophone community of the City of Greater Sudbury. All its cooperative community activities, including its business and affairs, take place primarily in the French language.
20The applicant, Angèle Gaudette, became a member and occupant of the Coopérative on December 1, 2008. Angèle Gaudette is fully bilingual in French and English.
21In or about May 2012, the applicant Gulaid Egeh made an application to become a member and occupant of the Coopérative. Gulaid Egeh was seeking to join his partner, Angèle Gaudette, in her unit. As part of the application process, Gulaid Egeh was granted an interview and met with representatives of the Coopérative. Gulaid Egeh is English speaking and, during the period covered in the Applications, he did not have the ability to speak, read and/or communicate in the French language. The interview was conducted in English. During the interview, Gulaid Egeh was informed that the Coopérative conducts its business and affairs in the French Language. Gulaid Egeh indicated that he had no problem with that. Based on his interview, Gulaid Egeh was offered and became a member and occupant of the Coopérative.
22The allegations in the Applications began in September 2015, when Gulaid Egeh and Angèle Gaudette informed the Board that there may be asbestos in their unit. After that, Gulaid Egeh alleges that he was shunned and adversely treated by the Coopérative Board and its members and he believes his race was a factor in the way he was treated. Angèle Gaudette maintains that she was also adversely treated at the Coopérative and believes this is because of her association with Gulaid Egeh. Both Gulaid Egeh and Angèle Gaudette also allege that they were the subject of reprisal or threat of reprisal because they filed Applications 1 and 2.
adding and removing personal respondents
Adding the Board as a Respondent
23The applicants seek to add the Board as a respondent to all four Applications. The applicants feel that the Board is responsible for all decisions affecting members of the Coopérative and should be held responsible for its actions.
24The respondents argue that there is a corporate respondent, the Coopérative, liable for the actions of the Board and as such it is unnecessary to name the Board as a party.
25This Tribunal has held as follows:
It is an elementary principle of law that in order to bear legal rights and obligations a person must have what is called legal personality. That is, they must be recognizable at law as a person who can sue or be sued. The types of persons with legal personality include natural persons (that is, human beings) and juridical/artificial persons (such as corporations). Entities or groups of persons that do not have legal personality cannot sue or be sued at law. A board of directors is one such entity which does not possess legal personality. In some circumstances, the individual members of a board of directors may be liable in their personal capacities. However, a board of directors is not itself a legal entity. Therefore, a board of directors cannot sue or be sued and it cannot be liable in a human rights proceeding. See, for example, Marsden v. Halton Condominium Corporation No. 41, 2014 HRTO 1332 at para. 39, La Boucane and La Boucane v. Klahanie Housing Co-operative (No. 2), 2008 BCHRT 8 at para. 2; Selinger v. Icon Property Management Ltd., 2013 HRTO 932 at paras. 3 and 17 and Greaves v. Niagara South Condominium Corporation No. 54, 2014 HRTO 1165 at para. 9.
26Consequently, the request to add the Board as a party to the four Applications is denied.
Adding Members of the Board Jean-François Pichette and Colette Lalonde as Personal Respondents
27When determining a request to add or remove a respondent, the Tribunal considers the following three questions:
Are there allegations made that could support a finding that the proposed respondent violated the Code?
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?
Would it be fair, in all the circumstances, to add the proposed respondent?
See Smyth v. Toronto Police Services, 2009 HRTO 1513.
28The 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 personal respondent’s conduct and whether the conduct of the 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 or removing the proposed respondent, the reasons the proposed respondent was not named in the Application or Response, and any prejudice to the other parties.
29The applicants argue that Jean-François Pichette and Colette Lalonde should be added as personal respondents as they made inappropriate personal comments to them.
30The respondents argue that the corporate respondent accepts the deemed or vicarious liability for the members of its Board. In addition, the Tribunal has held that the unnecessary naming of personal respondents is a practice that should be discouraged. Adding personal respondents would unduly increase the complexity of the procedures and should be discouraged. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42.
31I find that the Coopérative has accepted its deemed or vicarious liability for the actions of members of the Board and there is no question with respect to the Coopérative’s ability to respond to or remedy the alleged Code infringements. I am of the view that the applicants have not provided any facts to suggest that the members of the Board were acting outside of their capacity as Board members and there is no compelling reason to add them as personal respondents.
32The request to add Jean-François Pichette and Colette Lalonde as personal respondents is denied.
Request to Add Maud Pichette as Personal Respondent
33The applicants seek to add Maud Pichette, who is Jean-François Pichette’s spouse and a member and occupant of the Coopérative, as a personal respondent to Applications 3 and 4. They argue that Maud Pichette has made inappropriate comments to them.
34The respondents argue that Maud Pichette is not an employee or member of the Board and there is absolutely nothing pled that could make her responsible for a breach of the Code in the context of any of the Applications.
35Maud Pichette is a member and occupant of the Coopérative. She is not an employee or a member of the Board of the Coopérative. The applicants wish to add her to Applications 3 and 4 in which they allege reprisal for having filed Applications 1 and 2. Maud Pichette was not involved in Applications 1 and 2 and there is no indication that Maud Pichette knew anything about Applications 1 and 2. The applicants have not pointed to any valid reasons to add Maud Pichette as a personal respondent.
36The request to add Maud Pichette as a personal respondent to Applications 3 and 4 is denied.
Request to Add René Daoust as a Personal Respondent
37The applicants seek to add René Daoust as a personal respondent to Application 1. René Daoust is already a personal respondent to Application 2.
38The applicants argue that René Daoust adversely treated Gulaid Egeh when he was chairing a Board meeting.
39René Daoust, argues that he is not part of the Coopérative. He is an employee of Co-operative Housing Federation of Canada. He was asked to chair a meeting of the Coopérative Board because the meeting was expected to be acrimonious. René Daoust states that he is not part of any dispute within the Cooperative and was only incidentally involved by chairing that meeting. He submits that he should not be added as a personal respondent to Application 1 and should be removed as a personal respondent to Application 2.
40Having considered the factors above, I find that the applicants have not shown that René Daoust was involved in any dispute at the Coopérative. During the material time, René Daoust only chaired one meeting of the Board. I find that the applicants have not raised any allegations that could support a finding that the proposed respondent, René Daoust should be added as a party to Application 1.
41The request to add René Daoust to Application 1 is denied. The request to remove René Daoust from Application 2 is granted.
Request to Add Carmen Lalonde as a Personal Respondent
42The applicants seek to add Carmen Lalonde to Application 1. Carmen Lalonde is already a respondent to Application 2. Carmen Lalonde is the Coopérative Coordinator and an employee of the Coopérative. The applicants allege that Carmen Lalonde made inappropriate comments to Gulaid Egeh and Angèle Gaudette about the Muslim religion. They argue that she should be added as a personal respondent to the Application as the comments were personal in nature.
43The respondents state that the Coopérative has accepted its deemed or vicariously liability for the actions of its employees and there is no question with respect to the Coopérative’s ability to respond to or remedy the alleged Code infringements.
44I find that it would be fair to add Carmen Lalonde as a personal respondent to Application 1. The Application includes allegations that she made inappropriate comments based on Gulaid Egeh’s religion that could amount to violations of section 2(2) of the Code.
45Pursuant to section 46.3(1) of the Code, harassment under section 2(2) attracts personal liability but does not attract deemed liability by a corporate respondent for the actions of its officers, officials, employees or agents.
46The request to add Carmen Lalonde as a personal respondent to Application 1 is granted.
47The applicants also seek to add Carmen Lalonde to Applications 3 and 4. I find that the applicants have failed to demonstrate that Carmen Lalonde was acting in her personal capacity and not as an employee of the Coopérative in Applications 3 and 4.
48The request to add Carmen Lalonde as a personal respondent to Applications 3 and 4 is denied.
Request to Amend Application
49At the beginning of the summary hearing, the applicants requested to amend the Application as follows:
a. In Application 1, that the ground of “ancestry” be amended to “race” and that the ground of “family status” be amended to “marital status”;
b. That the social area “employment” in Application 1 be amended to “housing”;
c. That the ground of “family status” in Application 2 be amended to “marital status”;
d. That the social area “employment” in Application 2 be amended to “housing”.
50The applicants noted that the request to amend does not change the substantive nature of the Applications.
51The respondents did not oppose the request.
52Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.
53In deciding requests to amend applications the Tribunal generally considers the nature of the proposed amendments, the reasons for the amendments, the timing of the request to amend and the prejudice to the respondents. See, for example, Dube v. Canadian Career College, 2008 HRTO 336; Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926; and Dunford v. Holiday Ford Sales, 2009 HRTO 1563.
54I grant the request to amend the Applications as described above. The amendments are not substantive and they are unopposed.
Should the Applications Continue in the Tribunal Process
55The issue before me is whether the Applications should proceed or whether they should be dismissed as having no reasonable prospect of success. The Tribunal’s Practice Direction on Summary Hearings states:
A summary hearing usually considers:
whether, assuming all of the allegations are true, the Application has no reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation; and/or
whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated by the respondent(s). The applicant has to show that he or she can make a link between the event that led to the Application and the alleged ground(s) of discrimination.
56Rule 19A.6 of the Tribunal’s Rules of Procedure states that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.
57At the summary hearing stage, the Tribunal does not hear evidence and a finding that an Application should not be dismissed as having no reasonable prospect of success means only that the Application will continue to be processed. It is not a finding that there is a reasonable prospect of success.
58In Peel Law Association v. Pieters, 2013 ONCA 396, the Court of Appeal referred to Radek v. Henderson Development (Canada) Ltd. (No.3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302, and Phipps v. Toronto Police Services Board, 2009 HRTO 877, for the following propositions:
a. the prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;
b. there is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;
c. the prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;
d. there need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and
e. racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.
59I cannot find that the allegations of discrimination based on race, creed, association with a person identified by a prohibited ground and reprisal or threat of reprisal have no reasonable prospect of success. Discrimination is often proven by circumstantial evidence and inference and racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices. It appears to me that the issues raised by the applicants may only be resolved after hearing evidence in a hearing on the merits. In order to address the respondents’ refutation of the applicants’ allegations, a hearing on the merits must be held.
Order
60The Tribunal orders as follows:
a. the request to add the Board to Applications 2015-22500-I; 2015-22761-I; 2017-26806-I and 2017-26807-I is denied;
b. the request to add Jean-François Pichette and Colette Lalonde as personal respondents to Applications 2017-26806-I and 2017-26807-I is denied;
c. the request to add René Daoust to Application 2015-22500-I is denied;
d. The request to remove René Daoust from Application 2015-22761-I is granted and the style of cause is amended accordingly;
e. the request to add Carmen Lalonde to Application 2015-22500-I is granted and the style of cause is amended accordingly;
f. the request to add Carmen Lalonde to Applications 2017-26806-I and 2017-26807-I is denied;
g. The request to amend the Applications as follows is granted:
o In Application 2015-22500-I, that the ground of “ancestry” be amended to the ground of “race” and the ground of “family status” be amended to “marital status”;
o That the social area “employment” in Application 2015-22500-I be amended to “housing”;
o That the ground of “family status” in Application 2015-22761-I be amended to “marital status”;
o That the social area “employment” in Application 2015-22761-I be amended to “housing”.
h. The Application shall continue and the Tribunal will schedule an in-person two day hearing.
Dated at Toronto, this 27th day of September, 2017.
“Signed by”
Josée Bouchard
Vice-chair