SIU TUNG CHOI v. FOO LUM HOLIDINGS LTD AND ANOTHER

DCEO 2/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

EQUAL OPPORTUNITIES ACTION NO 2 OF 2015

--------------------

--------------------

---------------------

RULING

---------------------

INTRODUCTION

1. This is the application of the respondents (R1 and R2) to strike out the claim of the claimant (C).  In the summons,[1] the respondents say that they rely on all the grounds as stipulated in Order 18 rule 19[2]  of the Rules of the District Court (Cap 336H) as well as the inherent jurisdiction of the court. 

2. For the purpose of the present application, the following factual assertions, which are extracted from the Amended Notice of Claim,[3] should be taken in C’s favour:-

(a)  C is a person with a disability in that he is physically impaired and wheelchair-bound;

(b)  At all material times, R2 was a subsidiary company of R1 and the two companies have the same two directors;

(c)  R2 ran a restaurant (“the Restaurant”) and was the manager of the accessible toilet (“the Accessible Toilet”) in question and R1 was an entity in whose power could facilitate access to the toilet;

(d)  On 2 November 2012, when C first visited the Restaurant as a customer he found that the Accessible Toilet had been used as a storeroom filling with sundry items and it could not be used as an accessible toilet at all;

(e)  on 5 June 2012, C lodged a complaint with the Equal Opportunities Commission (EOC) and through the intermediary of which he eventually reached a conciliation agreement[4] with R1 on 31 July 2013;

(f)   in the conciliation agreement, R1 undertook that it would by 20 September 2013 remove sundry items from the Accessible Toilet, complete the repair works there, opened it for those in need and maintain it for normal usage on a long-term basis; and

(g)  despite what had been undertaken by R1, upon later inspections in October 2013 and February 2014 the situation was found not having been remedied.

3. Based on the above, C alleges that:-

(i)   the respondents had breached ss 25(1) and 28(2) of the Disability Discrimination Ordinance (Cap 487) (“DDO”) in that they had permitted to be in place and/or failed to rectify access barriers to the Accessible Toilet, thereby rending C unable to gain independent access to and use of it.  The aforesaid breaches, according to s 6(2), amount to indirect discrimination in that the respondents had applied the ability to negotiate the access barriers a requirement or condition to people who wishes to gain access to and use of the Accessible Toilet; and

(ii)  R1 had also breached its undertakings as contained in the conciliation agreement;

CONTENTIONS

4. Despite the very wide and general terms of the summons in which the present application is crouched, Mr Chiu, counsel for the respondents, pragmatically accepts that the success or otherwise of the application actually hinges on the following two submissions only:-

(a)  on a reasonable reading of the claimant’s Amended Notice of Claim together with the Answers to Request for Further and Better Particulars, the claimant’s claim has been based just on a single incident which is alleged to have occurred on 2 November 2012 and that, subject to any discretionary extension by the court, the claim has become time-barred; and

(b)  R1 and R2 are separate legal entities and the Restaurant was run only by R2. As such R1 cannot be held responsible for any discriminatory acts alleged to have been committed by R2 regarding the access to or use of the Accessible Toilet.  It is, however, acknowledged that this ground is relevant to the claim against R1 only. 

5. In reply, Ms Seto, counsel for C, submits that:-

(a)  the discriminatory act relied upon by C was not a one-off incident but “a continuing state of affairs” extending over a period of time.  Reference is made to C’s affirmation filed in opposition to the application where it is said that C had personally visited the Restaurant on occasions after 2 November 2014, including 10 October 2013, 14 February 2014 and 6 June 2014.  Reference is also made to paragraph (9)(b) of the Amended Notice of Claim where the visits in October 2013 and February 2014 are alluded to.  Reliance is placed on  s 82(5)(b) of the DDO where it says that “any act extending over a period shall be treated as done at the end of that period”; and

(b)  as regards R1’s liability, it is alleged that R1 was the principal of R2 and that s 56(2) of the DDO has the effect of imposing liability on a principal when the actions of a third party were within the scope of control of the principal: Lana v Positive Action Training in Housing (London) Ltd.[5]

THE ISSUES

6. In view of the above contentions of the parties, the major issues in this application are as follows:-

(a)  whether C’s claim was based just on a single visit on 2 November 2012 and thus exceeding the 24-month time limit;[6]

(b)  if so, whether the court should exercise its discretion to allow the claim to proceed on the basis that it is just and equitable to do so;[7] and

(c)  whether s 56(2) gives C has a cause of action against R1 and if not, whether the claim against R1 should be struck out. 

7. The parties have agreed that for the purpose of calculating the 24-month time limit, allowance should be given to the one month and 21 days taken up from the lodging of the complaint (on 10 June 2013) to the signing of the conciliation agreement (on 31 July 2013).[8] Therefore, if C’s claim were based on the alleged incident on 2 November 2012 alone, then the time limit would have expired by 23 December 2014 and the claim (which was first filed on 6 February 2015) would be about one and a half month out of time. 

RELEVANT LEGAL PRINCIPLES

DDO

8. DDO is a social legislation which involves the protection of civil rights and therefore should be interpreted with a purposive approach so that its objectives, as stated in its long title,[9] can be achieved: see s 19 of the Interpretation and General Clauses Ordinance, Cap 1;[10] and Tsang v Cathay Pacific Airways Ltd.[11]  See also Wong Lai Wan Avril v Prudential Assurance Co Ltd,[12] where it is said that a “generous and liberal interpretation” should be adopted in interpreting an anti-discrimination statute.

9. Whilst s 6, DDO defines what disability discrimination is, it should be noted that not all incidents of disability discrimination are unlawful. Disability discrimination is only rendered unlawful and actionable by a person with a disability if it occurs in one of the fields in which it is prohibited by Parts 3 and 4[13] or if it amounts to vilification.[14] Sections 25 and 28, which are about “access to premises” and “disposal or management of premises” respectively, are provisions within Part 3. 

10. Moreover, pursuant to s 48, DDO, any act done by an agent with the authority of his principal shall be treated as done by the agent as well as the principal.  This provision has been interpreted to mean that the principal will be liable wherever the agent discriminates in the course of carrying out the functions he is authorised to do.  The principal can be liable even though he has not authorised the act of discrimination itself.  It follows that the act itself may be – and no doubt usually will be – without the principal’s knowledge or approval.  It has also been recognised that an agent for the purpose of s 48, DDO does not necessarily have the power to bind the principal contractually: see Ministry of Defence v Kemeh;[15] also Bowstead & Reynolds on Agency, 20^th Edition, at §1-004.

Striking out application

11. The relevant legal principles for striking out pleadings pursuant to Order 18 r 19 and the court’s inherent jurisdiction are well-known and they can be found in Hong Kong Civil Procedure 2016, at §18/19/4-11 and §18/19/12-24 respectively. I will not repeat those.  It suffices for me to highline that the court’s aforesaid powers are only reserved for plain and obvious cases where the claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed.  Moreover, generally the court should not decide a difficult point of law on a striking out application, especially in an area where the law is still developing and also when the point of law is depended on disputed facts which are yet to be resolved: see Anyanwu v South Bank Student Union.[16]

12. The major difference between the statutory power and the court’s inherent jurisdiction, insofar as it is relevant to the present application, is the extent to which the court is allowed to look at evidence.  In case of an application based on r 19(1)(a), r 19(2) says that no evidence shall be admissible.  However, in case of an application based on r19(1)(b)-(d) or inherent jurisdiction, the court is entitled to and in fact quite often takes into account affirmation evidence: see Hong Kong Civil Procedure 2016, at §18/19/3 & 14.  In the present case, both sides have filed affirmations for the purpose of the application.

13. In relation to Mr Chiu’s submission that “the Court only has to read C’s pleadings to determine the outcome of this application and that the fact C has supplemented this pleadings by way of affirmation is irrelevant” and that “evidence of facts not alleged in pleadings are in any event inadmissible”, with respect, this seems to be going too far and can only be true as regards r 19(1)(a).  It is correct that, in view of r 19(2), the court should not be looking at the supplemental information contained in the affirmations when deciding whether C’s Amended Notice of Claim has disclosed a reasonable cause of action against each of the respondents.  However, even if the court decides the point in favour of either of the respondents, this is not the end of the matter as the court still has to decide whether this is an appropriate case to order amendment.  On the other hand, as aforesaid the affirmations could be relevant to the exercise of the court’s power under r 19(1)(b)-(d), its inherent jurisdiction and also the court’s discretion under s 82(3) of DDO. 

14. Besides, the court has to take into account the particular feature of the present case in that there have been no formal pleadings.  C’s claim is made pursuant to the District Court Equal Opportunities Rules (Cap 336G) (“the New Rules”) which were introduced in November 2014.  Before the introduction of the New Rules, it was observed that there were more interlocutory applications in discrimination claims such as applications for extension of time to file pleadings, applications for provision of further and better particulars of pleadings and striking out applications than other ordinary civil claims.[17] Thus, the New Rules were made with the objectives of providing more flexibility for parties to equal opportunities proceedings and expediting the adjudication of equal opportunities claims by replacing formal pleadings with more informal notices of claim and notices of response.  However, where necessary, the court may, either upon parties’ application or on its own volition, direct that the formal pleadings process be used in any particular case.[18] 

15. Bearing in mind the objectives of the New Rules and the fact that none of the parties had ever applied for formal pleadings process be used in the present case, it would in my view not be right to apply without any modifications the criteria and rules applicable to formal pleadings when deciding whether the present claim should be struck out for any inadequacies in the way it is framed[19]; otherwise, the purpose of the New Rules would be defeated.  This is not to say that a claim made under the new notice procedure can never be struck out no matter how poorly it is drafted.  Afterall, r 7(3) of the New Rules requires that a notice of claim must include, among other things, a concise statement of:-

(i)   the circumstances in which the claim is made;

(ii)   the remedy or relief that the person claims; and

(iii)  any question that the person wishes to have determined.

16. As to how much details a notice of claim should contain, it is perhaps pertinent and instructive to remind oneself the functions of pleadings.  In the oft-quoted case of ADS v Wheelock Marden & Co Ltd,[20] it is said that a properly particularised pleadings should serve the following functions, namely:-

(a)  to inform the other side of the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(b)  to prevent the other side from being taken by surprise at the trial;

(c)  to enable the other side to know with what evidence they ought to be prepared and to prepare for trial;

(d)  to limit the generality of the pleadings, the claim and the evidence;

(e)  to limit and define the issues to be tried, and as to which discovery is required; and

(f)   to tie the hands of the party so that he cannot without leave go into any matters not included.

In my humble view, to ensure fairness of the trial notices filed under the New Rules should perform similar functions as pleadings, subject to the rider that some flexibility should be allowed to the parties in line with the objectives of the New Rules.  When a claim is not adequately pleaded in the notice of claim, the court should consider whether it is just and appropriate to direct that pleadings be used[21] or to order appropriate amendments[22] before striking out a claim. 

CONSIDERATION

As to (a): when the time started to run 

17. Mr Chiu has not specified whether this issue relates to the ground based on Order 18 r 19(1)(a) or otherwise.  However, in view of his submission that the claim is based on a single incident on 2 November 2012, that it has been time-barred and therefore should be struck out, I take it that this issue relates to the ground that C’s claim discloses no reasonable cause of action against the respondents.  As such, I will consider this issue solely on the basis of how C has put his claim in the Amended Notice of Claim as read with the Answers to the Request for Further and Better Particulars. 

18. In C’s Amended Notice of Claim, it is asserted:-

“Access Barriers in relation to the Accessible Toilet

(5) On or around 2 November 2012, when the Claimant first visited the Restaurant as a customer, he noticed that the Accessible Toilet was used by the 2^nd Respondent as a storeroom filled with sundry items such that it could not be used as an accessible toilet at all.

(6) On or around 31 January 2013, the Claimant’s representative further found out that the water people connecting to the toilet bowl was in disrepair.

…

Breach of the Conciliation Agreement

(9)   Wrongfully and in breach of the Conciliation Agreement, the 1^st Respondent failed to:

(a)    complete the repair works of the Accessible Toilet whether on or before 20 September 2013 or at all, such that there was  and is still water leakage from the toilet bowl onto the grounds, posing a safety hazard to users of the Accessible Toilet;

(b)     ensure that the Accessible Toilet was opened to those in need for normal use since 20 September 2013, in that the Accessible Toilet has been found to have a signage of “維修中” placed on the door in October 2013 and February 2014, while the Accessible Toilet was not in fact in repair but was reverted to be used as a storeroom filled with sundry items including 10 odd packs of soft drinks and a Pepsi cooler; and

(c)    ensure clear access and egress to the Accessible Toilet, by allowing folding tables to be placed in front thereof, such that those in need were prevented from gaining entry to the Accessible Toilet.

(10)   The foregoing matters constitute physical barriers in the Accessible Toilet, preventing the Claimant and other wheelchair users from independent access to and use thereof (collectively “Access Barriers”).

Disability Discrimination against the Claimant

(11)   Wrongfully and in breach of sections 25(1) and 28(2) of the Ordinance, the Respondents have permitted to be in place and/or failed to rectify the Access Barriers, thereby rendering the Claimant and other wheelchair users unable to gain independent access to and use of the Accessible Toilet.

(12)   Further, the Respondents have applied the ability to negotiate the Access Barriers as a requirement or condition within the meaning of section 6(b) of the Ordinance to the Claimant as well as a person without a disability who wishes to gain access to and use of the Accessible Toilet.

(14)   In the premise, the Respondents have unlawfully discriminated against the Claimant, contrary to sections 6(b), 25(1) and/or 28(2) of the Ordinance.

(15)   Repair and rectification works can be made by the respondents … so as to provide access to the Accessible Toilet by the Claimant and other wheelchair users and without unjustifiable hardship.

(16)   However, despite repeated requests from the Claimant, the Respondents have consistently failed, neglected and /or refused to rectify the Access Barriers and remove the same permanently.” 

19. On 18 August 2015, the respondents sought further and better particulars[23] from C and asked, among other things, the following:-

(a)  As clearly and accurately as possible, the dates(s) and time on which the Access Barriers have allegedly rendered the Claimant unable to gain independent access to and use of the Accessible Toilet.

(b)  The capacity of the Claimant on each of the occasion to be particularized by the Claimant in entering the Restaurant, whether as a customer and otherwise.

20. C gave the Answers on 21 August 2015[24] in which the following additional piece of information was provided:-

“On or around 2 November 2012, the Claimant was dining in the restaurant as a customer. On or around 31 January 2013, the Claimant’s representative attended the restaurant as a lawful visitor.”

As to the other requests for particulars by the respondents, C simply answered that the matters have been sufficiently pleaded in the Amended Notice of Claim. 

21. From the above, I have the following observations:-

(a)  although the Amended Notice of Claim alludes to inspections “in October 2013 and February 2014”, no precise dates are given in either the Amended Notice of Claim or the Answer.  Besides, there are no assertions in either of the two documents that the inspections were done by C himself; 

(b)  in reply to the respondents’ enquiry as to the dates on which the Access Barriers had rendered C unable to gain independent access to and use of the Accessible Toilet and his capacity on those occasions, only the visits on 2 November 2012 and 31 January 2013 were given, the latter was paid by C’s representative rather than C personally; and

(c)  the “Accessible Barriers” as defined in paragraph 10 refer to the “foregoing matters”, which must be taken to mean the matters mentioned in paragraph 9, namely (a) water leakage from the toilet bowl; (b) sundry items stocked in the Accessible Toilet; and (c) the obstruction created by the folding tables in front of the Accessible Toilet.

22. In my judgment, from a reasonable reading of the Amended Notice of Claim and the Answers, C’s claim consists of only two parts:-

(a)  the incident on 2 November 2012 when C allegedly found that the Accessible Toilet was kept in such a state which rendered it inaccessible and unusable by him as a disabled person; and

(b)  the continuation of the Accessible Toilet in that state in breach of the conciliation agreement in spite of subsequent repeated requests for amelioration.

23. In my judgment, from a reasonable reading of the Amended Notice of Claim, the visit by C’s representative on or around 31 January 2013 and the subsequent inspections alluded to in paragraph 9(b) in October 2013 and February 2014 have not been put forward as separate acts of disability discrimination against C which give him separate causes of action in addition to the incident on 2 November 2012, but only to show that the state of the Accessible Toilet had continued. 

24. The above conclusion is reached without regard to C’s affirmation filed in opposition to the present application.  However, what C said in that affirmation tends to support the aforesaid reading of C’s case.  In his affirmation, C said,[25]

“15. As explained above, my complaint of the Respondents’ unlawful disability discrimination, by way of their permission of the Access Barriers to be in place and failure to rectify the same, is not in relation to a one-off incident, but rather a continuing state of affairs that started on 2 November 2012 and has continued up to date. On my part, I came across theAccess Barriers on at least 4 occasions during the period from 2 November 2012 to 6 June 2014.”

Therefore, it can be seen that C’s case is not that there had been separate incidents of disability discrimination against him.  He is relying on a “continuing state of affairs” commencing on 2 November 2012 which continued through to 6 June 2014 and that the time only started to run from the latter date.

25. However, having considered counsel submissions, I agree with Mr Chiu that the time started to run against C from 2 November 2012.  I am unable to accept Ms Seto’s contention that the time only started to run from 6 June 2014 on which date, according to what C said in his affirmation, he last visited the Restaurant.  My reasons are as follows.

26. Firstly, on the factual level:-

(i)  the 6 June 2014 incident was only mentioned for the first time in C’s affirmation but it has not been mentioned anywhere in the Amended Notice of Claim or the Answer.  Therefore, pursuant to Order 18, r19(2) that incident cannot be relied upon as providing C with a cause of action;

(ii)  regarding the visit on 31 January 2013, it is said to have been paid by C’s representative only and therefore it cannot be said that C suffered any discriminatory act on that occasion;

(iii)  as regards the inspections said to have been conducted in October 2013 and February 2014, it has not been asserted in the Amended Notice of Claim (as read with the Answers) that they were made by C personally, although he did say so in his affirmation.  When Ms Seto was asked by the court whether she would be minded to apply for leave to amend the Amended Notice of Claim so as to make it explicit that C had also been to the Restaurant on those two occasions, she answered in the negative, thus confirming that C’s case is put on the basis of a “continuing state of affair”, rather than there being separate acts of discrimination on different occasions.

27. Secondly, as a matter of law I am unable to accept that C can avail himself of s 82(5)(b), DDO.  My reasons are as follows:-

(i)  Ms Seto submitted that “acts extending over a period” was not limited to acts constituting a continuous general discriminatory policy or regime but include an ongoing practice resulting in consistent decisions discriminatory of the complainant taken from time to time: Owusu v London Fire and Civil Defence Authority,[26] applied in Tadjudin v Bank of America, National Association;[27] and that the provision also covers “a continuing discriminatory state of affairs”: Commissioner of Police of the Metropolis v Hendricks.[28]  Whilst I do not doubt the correctness of those case authorities, in my view they are all distinguishable in that they were decided against the backdrop of a pre-existing employer/employee relationship.  It is against that backdrop that the complainant employee was said to be subject to the continuing impact of any discriminatory decision, practice or policy of the employer; 

(ii)  without actually deciding on the point, it may be that the principle derived from the aforesaid case authorities can be extended to cases where there are exist other types of on-going relationship.  However, in the present case there was no on-going relationship whatsoever between C and the respondents.  A patron visits a particular restaurant only as and when he pleases and each of such visits is generally a separate incident unrelated to the others.  Besides, there were no special facts alleged in the present case such that C had to visit the Restaurant on a continuing or regular basis;

(iii)  I agree with the submission of Mr Chiu that it would be unrealistic to describe a disabled person as having been subject to the “continuing act of discrimination” of a restaurant operator just because the latter had failed to properly maintain the accessible toilet in his premises.  Had it been otherwise, a restaurant operator could (at least in theory) face numerous claims even by those who had never visited the restaurant; and

(iv)  it would be more realistic to treat each visit paid by a disabled patron as an isolated incident when there was an act of discrimination committed against him, giving him or her a separate cause of action for which time began to run from the date of the incident.

28. As C has only pleaded a single incident on 2 November 2012 when he personally visited the Restaurant and s 82(5)(b), DDO is not applicable, in my judgment the time started to run against him from 2 November 2012 and therefore it was already about one and a half month out of time when the claim was first filed.

As to (b): discretion

29. Although s 82(3), DDO gives the court a discretion to consider a claim which is out of time if it is just and equitable to do so, it has not spelled out the specific factors to which it should have regard.  I accept the submission of Mr Chiu, with which Ms Seto does not seem to disagree, that in exercising the discretion, the court would be assisted by a consideration of the matters listed in s 30(3) of the Limitation Ordinance, Cap 347, insofar as they are applicable.[29]I bear in mind, however, that the six specific factors listed there are non-exhaustive and that s 82(3), DDO requires the court to look at “all the circumstances”.  I note also that it is well-established that under s 30 of the Limitation Ordinance it is for the plaintiff to show that it is equitable to allow the claim to proceed, and it is for the defendant to show prejudice if the claim is to proceed: see Cheung Yin Heung v Hang Lung Real Estate Agency Ltd.[30]  In my view, similar onuses should be placed on the claimant and the respondent respectively in relation to s 82(3), DDO.  As aforesaid, when considering whether it is just and equitable to allow the claim to proceed, the court is entitled to take into account affirmation evidence filed by the parties.  I now turn to consider the evidence before me.

30. In C’s affirmation,[31] it is said that after the signing of the conciliation agreement on 31 July 2013, R1 had, in reply to further enquiries from EOC, wrote 3 letters[32] containing various representations to the effect that the Restaurant was their branch, that they had already informed the relevant departments to look into the matter, that they had caused remedial works to be done, that they would punish those who were responsible for cleaning the toilet in case of similar complaints in the future and that the repair works had in fact been completed.  Based on the representations, C said that he believed that R1 had the power to facilitate access to the Accessible Toilet provided by R2.  However, despite the undertakings by R1, the Accessible Toilet was found remaining inaccessible to C when he visited the Restaurant on 6 June 2014. 

31. Although C has not said in terms that the alleged tardiness of R1 in fulfilling their undertakings had contributed to his late filing of the claim, one cannot lose sight of the fact that there were 10 months between the signing of the conciliation agreement and the last reply letter from R1.  In my view, there is a reasonable and ready inference that C had desisted from filing the claim because of R1’s representations.  Moreover, in my view C and EOC should be excused for having adopted a “wait and see” attitude in the interim in the hope that litigation could eventually be avoided.  I have not ignored the time gap between the alleged last visit by C on 6 June 2014 and the filing of the claim on 6 February 2015.  However, I do not think that the time gap is unreasonable in the circumstances given that C is a disabled and wheelchair-bound person and that some amount of investigation and preparation work would presumably have to be undertaken before EOC was in a position to file the claim on C’s behalf. Moreover, compared to the alleged 10 months’ delay on the part of R1, C’s claim is only one and a half month out of time.

32. On the other hand, in the affirmation filed on behalf of the respondents,[33] emphasis was placed on the fact that R1 and R2 are separate legal entities and that the Restaurant was run solely by R2.  However, the issue about whether it would be “just and equitable” to allow C’s claim to proceed or whether the respondents would suffer any prejudice as a consequence was not addressed at all.  Neither was it mentioned in Mr Chiu’s written submission filed for the present application.  At the hearing, upon enquiry by the court Mr Chiu was unable to articulate any specific prejudice if the claim were allowed to proceed.

33. By looking at all the circumstances in the round, in my judgement it is just and equitable to allow C’s claim to proceed in spite of the short delay of C.

As to (c): separate legal entities

34. As aforesaid, this ground is only relevant to R1. 

35. Section 56 provides:-

“(1) References in this Ordinance to the affording by any person of access to benefits, services or facilities are not limited to benefits, services or facilities provided by that person himself, but include any means by which it is in that person's power to facilitate access to benefits, services or facilities provided by any other person (actual provider).

(2)   Where by any provision of this Ordinance the affording by any person of access to benefits, services or facilities in a discriminatory way is in certain circumstances prevented from being unlawful, the effect of the provision shall extend also to the liability under this Ordinance of any actual provider.”

36. As regards Ms Seto’s submission on s 56 and its applicability to R1 as a person who has power to facilitate access to the Accessible Toilet, the point has not been covered by any local case authorities and there are difficulties with the submission as follows. 

37. Firstly, as pointed out by Mr Chiu:-

(a)  56 is one of a group of ss 50-61 in Part 6, DDO under the heading “General Exceptions from Parts 3 to 5” and some of these provisions prevent treatment which would otherwise constitute unlawful discrimination under Parts 3 to 5 from being unlawful; and

(b)  based on the above, there is a reasonable argument against Ms Seto’s submission that s 56(1), DDO is intended to widen the ambit of those exceptions and was not intended to widen, and does not widen, the ambit of the liability created by the Parts 3 to 5, DDO.  The argument is further strengthened by the wording of s 56(2) which is intended to protect the actual provider of benefits, facilities or services.  Thus, so the argument goes, s 56(1) protects the indirect provider and s 56(2) protects the actual provider: cf in re the Equal Opportunities Commission & Others’ Application.[34]

38. Secondly, Lana v Positive Action Training in Housing (London) Limited,[35] the case Ms Seto relied on, does not in fact support her submission.  In that case, the complainant was placed by the respondent with a firm (a third party) as a trainee quantity surveyor.  The placement was effected by two contracts: the first being one between the complainant and the respondent; and the second between the respondent and the third party.  As such, the third party was viewed as an agent of the respondent for the purposes of fulfilling the training obligations which the respondent had entered into with the complainant.  As it turned out the third party, upon being notified by the complainant that she had become pregnant, terminated her training.  The respondent, having no funding for the continuing training of the complainant and no alternative placement for her to go to, also terminated their contract with her.  Therefore, the complainant filed a claim of sex discrimination against the respondent under s 14 of the Sex Discrimination Act. [36]  It was submitted on her behalf that any person in the position of a principal should be liable for any discrimination that befell an individual trainee in the course of training albeit that the training was provided by others.  Reliance was placed on s 50 of that act which is the English equivalent to our s 56, DDO.  As to this, Mr Recorder Langstaff QC said,[37]

“It is plain that Section 50 seeks to widen the scope of any provision which relates to discrimination in the provision of access to benefits, facilities or services from direct provision to indirect provision. But that does not answer the question whether the acts of discrimination have to be by the person who is indirectly providing the access to benefits, facilities or services just as they would have to be (under a restrictive reading of section 14) to anyone providing such access directly.” (Emphasis supplied)

Accordingly, the learned judge went on to say, s 56 of the English Act is not a provision which would on its own permit the complainant to succeed. 

39. Thirdly, there may be scenarios where there are more than one entity which has the power, in difficult capacities and degrees, to facilitate access to benefits, services or facilities provided by the actual provider.  If s 56(1) has the effect of extending legal liabilities to indirect providers, does it mean that a discriminated person can pick and choose which one of them to sue?  If not, then what would be the criteria for choosing?  If Ms Seto’s submission was to be accepted, there would be considered uncertainty as to the scope of the provision.

40. However, I find that it is not necessary for the court to resolve this difficult question of law about s 56(1), DDO in the present application.  In Lana, ante, it was decided that the respondent in that case could be held liable for the discriminatory act committed by the third party as their agent by virtue of  the English equivalent of our s 48(2), DDO.  Similarly, in the present case R1 may attract liability if R2 was acting as their agent in affording access to the Accessible Toilet to others.  In this regard, I note that in an appropriate factual situation, a subsidiary company is capable of being taken as an agent of its holding company: see, eg, Smith, Stone and Knight Ltd v Birmingham Corporation.[38] The agency argument involves an admission that there exists two separate legal entities.  Moreover, the basis for liability under the law of agency is not to be confused with the basis of attaching liability in the context of the separate legal entity principle on the basis of “sham” or “façade”.  Whether or not a subsidiary company in fact acts as an agent of its holding company is a question of mixed law and facts: see Company Law, Powers and Accountability, by Loh & Wong.[39] 

41. The crux of the matter then is whether C has in fact already pleaded a case of R2 being R1’s agent or whether it amounts to a new cause of action against R1.  In my judgment, although the word “agent” or “principal” had not been used by C in the Amended Notice of Claim, by looking at the substance of C’s pleaded case, the question is to be answered in the affirmative.  This is because C has pleaded that:-

(a)  R2 was a subsidiary of R1 and the two companies have the same two directors;

(b)  R2 was carrying on the business of the Restaurant and was a manager of the Accessible Toilet;

(c)  R1 was an entity in whose power could facilitate access to the Accessible Toilet; and

(d)  upon C lodging a complainant with EOC in respect of the Accessible Toilet, R1 alone signed the conciliation agreement which contained undertakings that they would remove the sundry items stored in the Accessible Toilet, complete the repair works there, open the Accessible Toilet to those in need and ensure the Accessible Toilet could be used normally on a long-term basis.  It is important to note that R1’s undertakings were that they would do the things promised themselves, not that they would try and procure the co-operation of R2 in those regards.

42. In my view, there is an implicit assertion in the above pleaded facts that R2 was under R1’s control and that it was acting on R1’s behalf in managing the Accessible Toilet.  However, if I was wrong that C’s case included an assertion of agency, I would allow C to amend his claim on the basis that the case of agency against R1 arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claim: see Attorney General v Ng Kam Chuen [1992] 1 HKC 51, and generally Hong Kong Civil Procedure 2016, at §2018/16.

CONCLUSION

43. Based on the above, the respondents’ application is dismissed.

COSTS

44. Although the respondents are unsuccessful in the present application, in view of my ruling that C’s claim has been out of time and is only allowed to proceed by the court’s discretion and also in view of s 73C(3) of the District Court Ordinance,[40] I make an order nisi that each party bear their own costs of this application. 

[1] Dated and filed on 11.9.2015, p 26 [All page references are those of the Hearing Bundle unless otherwise specified.]

[2] Order 18, r19 provides:

(1)The Court may, either of its own motion or on application, at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court,

   and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the   case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a).

[3] p1. The original Notice of Claim was first filed on 6.2.2015.

[4] p 48

[5] [2001] IRLR 501, EAT

[6] s 82(1), DDO

[7] s 82(3), DDO

[8]  s 82(2A), DDO

[9] “An Ordinance to render unlawful discrimination against persons on the ground of their or their associates' disability in respect of their employment, accommodation, education, access to partnerships, membership of trade unions and clubs, access to premises, educational establishments, sporting activities and the provision of goods, services and facilities; to make provision against harassment and vilification of persons with a disability and their associates; to extend the jurisdiction of the Equal Opportunities Commission to include discrimination against persons on the ground of their or their associates' disability, and for connected purposes.”

[10] “An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

[11][2002] 2 HKLRD 677

[12] [2010] 2 HKLRD 677, at 683H

[13] ss71 & 72, DDO

[14] s 46, DDO

[15] [2014] ICR 625, at §§ 11 – 12 & 38 - 39 of that judgment.

[16] [2001] WLR 638, at §§24 & 37 of the judgment

[17] See Sit Ka Yin Priscilla v Equal Opportunities Commission and Others, DCEO 11/1999 (27.10.2010) at §19 of the judgment.

[18] See r 4(3), the New Rules

[19] See r 4(2), the New Rules, which sanctions the application of the provisions of RDC, with any   necessary modifications, to and in relation to equal opportunities proceedings.

[20] [1994] 1 HKC 264, 269

[21] r 4(3), the New Rules

[22] r 21, the New Rules

[23] p18

[24] p 22

[25] p 55.

[26] [1995] IRLR 574

[27] [2012] 5 HKLRD 115

[28] [2003] 1 All ER 654

[29] s 30(3) of Cap 347 provides:

“In acting under this section the court shall have regard to all the circumstances of the case and in particular to-

(a)  the length of, and the reasons for, the delay on the part of the plaintiff;

(b)  the extent to which, having regard to the delay, the evidence adduced or likely to be adduced by the plaintiff or the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 27 or 28, as the case may be;

(c)  the conduct of the defendant after the cause of action arose, including the extent, if any, to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff's cause of action against the defendant;

(d)  the duration of any disability of the plaintiff arising after the date of the accrual of the cause of action;

(e)  the extent to which the plaintiff acted promptly and reasonably once he knew whether or not the act or omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

(f)   the steps, if any taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”

[30] [2010] 3 HKLRD 67

[31] Dated and filed on 6.10.2015, p 57

[32] Dated respectively 4.4.2014 (p 68), 19.5.2014 (p 70) and 28.5.2014 (p 72).

[33] Dated and filed on 11.9.2015, p 38

[34] [1988] NI 233.  This case is based on Article 51(1) of Sex Discrimination (Northern Ireland) Order 1976, which is similar to s 56, DDO. 

[35] [2001] IRLR 501, EAT

[36] Section 14, provides:

“It is unlawful, in the case of a woman seeking or undergoing training which would help fit her for any employment, for any person who provides or makes arrangements for the provision of, facilities for such training to discriminate her …

(c) by terminating her training or

(d) by subject her to any detriment during the course of her training.”

[37] At § 29 of that judgment.

[38] [1930] 4 All ER 116

[39] At pp 33-38 of the book.

[40]s73C(3) provides:

“Each party to any proceedings in the Court in the exercise of its jurisdiction under the Disability Discrimination Ordinance (Cap 487) shall bear its own costs unless the Court otherwise orders on the ground that-

(a) the proceedings were brought maliciously or frivolously; or

(b) there are special circumstances which warrant an award of costs.”