Eldridge v. 2887126 Canada Inc. (No. 1)
BI-0256-99
1999-10-01
BOARD OF INQUIRY (Human Rights Code)
IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended;
AND IN THE MATTER OF the complaint by Lara Eldridge dated June 5, 1996 and amended October 13, 1998, alleging discrimination in employment on the basis of sex, sexual harassment, sexual solicitation and reprisal.
B E T W E E N :
Ontario Human Rights Commission
- and -
Lara Eldridge
Complainant
- and -
2887126 Canada Inc. c.o.b. Imperial Buffet Imperial Buffet Inc. Yu Sheung Tony Kong Joseph Lee Phoebe Lee Wei Chiong Chan (a.k.a. John Chang)
Respondents
INTERIM DECISION
Adjudicator: Katherine Laird Date: October 1, 1999 Board File No: BI-0256-99 Decision No: 99-016
A P P E A R A N C E S
Ontario Human Rights Commission Anthony Griffin
Lara Eldridge, Complainant On her own behalf
Wei Chiong Chan, Personal Respondent On his own behalf
INTRODUCTION
The hearing into the complaint of Lara Eldridge commenced by conference call on June 24, 1999. Present on the conference call were: Lara Eldridge; Anthony Griffin, counsel for the Human Rights Commission ("the Commission"); and Wei Chiong Chan, a personal respondent. The corporate respondents, 2887126 Canada Inc. and Imperial Buffet Inc., and the personal respondents, Yu Sheung Tony Kong, Joseph Lee and Phoebe Lee, did not respond to the notice of hearing sent to them by the Board of Inquiry ("Board") and did not participate in the conference call.
Following the conference call, the Commission filed a Statement of Facts and Issues in Dispute, pursuant to Rule 35 of the Board's Rules of Practice. The pleadings stated, among other things, that the Commission would be seeking an order to remove Imperial Buffet Inc. and Yu Sheung Tony Kong as respondents to the complaint.
Notwithstanding the absence of several respondents during the initial hearing by conference call, the participating parties agreed to attend a mediation session on October 6, 1999. The parties in attendance at that session were not able to resolve the matters in dispute.
Following the mediation session, the Commission brought a motion in respect of the delivery of its documents on the respondents as required by the Code and the Board's Rules of Practice. The motion sought an order:
(a) declaring that the service to date of documents to the attention of the respondents Joseph Lee and Phoebe Lee at the Imperial Buffet, 1881 Steeles Avenue West, North York constitutes effective service of those documents upon the respondents Joseph Lee and Phoebe Lee;
(b) declaring that there has been effective service to date of documents upon Yu Sheung Tony Kong and 2887126 Canada Inc.;
(c) providing that service of any document in the future upon the respondents Joseph Lee, Phoebe Lee, and 2887126 Canada Inc. may be effected by serving the document at the Imperial Buffet on Steeles Avenue West;
(d) in the alternative to (c), dispensing with service of documents in the future on Joseph Lee, Phoebe Lee or 2887126 Canada Inc.
The motion was heard on November 4, 1999. No one attended to oppose the Commission. In support of the motion, the Commission relied on affidavit evidence of: Kimberly Callaghan, a process server; Nancy Pocock, an officer with the Commission; and Lara Eldridge, the complainant. The affidavit evidence dealt with the various attempts made, on behalf of the Commission, to bring documents related to these proceedings to the attention of certain of the respondents, namely Joseph Lee, Phoebe Lee, Yu Sheung Tony Kong and 2887126 Canada Inc.
At the close of the Commission's submissions, I indicated that I would validate the service of documents on the respondents, Phoebe Lee and Joseph Lee, at the Imperial Buffet restaurant at 1881 Steeles Avenue West, North York, and order that, in the future, service could be effected on these respondents at that address.
I reserved on the motion for an order with respect to service of documents on Yu Sheung Tony Kong and the corporate respondent, 2887126 Canada Inc. I directed the Commission to attempt to find a further address for 2887126 Canada Inc. by doing a driver's licence search on Yu Sheung Tony Kong, who is identified as its signing officer on the corporate filing at the Ministry of Consumer and Commercial Relations. The Commission was given eleven days to file and serve affidavit evidence in relation to the further search. I have now received from the Commission a further affidavit of Nancy Pocock stating that an Equifax search with respect to Yu Sheung Tony Kong recorded his last address as 179 Bestview Drive, Toronto, and that a provincial driver's licence search revealed no current address under Yu Sheung Tony Kong or Yu Sheung Kong.
This is my order on the motion.
With respect to Phoebe Lee and Joseph Lee Based on the affidavit evidence of Nancy Pocock, I am satisfied that the original complaint herein did come to the attention of Phoebe Lee and Joseph Lee. Further, based on the affidavit evidence of Nancy Pocock, Kimberly Callahan and Lara Elderidge, I am satisfied that it is more likely than not that documents delivered by the Human Rights Commission to the attention of these named respondents at Imperial Buffet Inc., at 1881 Steeles Avenue West, have come to their notice. The affidavit evidence establishes, on a balance of probabilities, that these respondents have a continuing relationship with, and presence at, this restaurant. Delivery of documents to the respondents at this address is service effected in a manner which can be expected to bring the documents to their actual notice, in the absence of efforts to avoid service. I find, by way of analogy to Rule 16.08 of the Rules of Civil Procedure (pursuant to the Courts of Justice Act, R.S.O.1990, c.43), that this is an appropriate basis for making an order validating prior service of a document.
Accordingly, in consideration of the requirements of Rules 35 and 40 of the Board's Rules of Practice, I am validating service of the Commission's Statement of Facts and Issues in Dispute and its disclosure package on Phoebe Lee and Joseph Lee by delivery to them at Imperial Buffet Inc. Further, I am ordering that any documents which any party is required to serve on these respondents in this matter in the future may be served on them at 1881 Steeles Avenue West, North York.
On this basis, I also find that the Board itself has taken reasonable steps to give Phoebe Lee and Joseph Lee notice of this proceeding by sending notices of hearing addressed to them, by courier and by mail, at Imperial Buffet Inc. at 1881 Steeles Avenue West, as well as by mail at the corporate address for 2887126 Canada Inc., as registered with the Ministry of Consumer and Commercial Relations. Under s.6(1) of the Statutory Powers Procedure Act, R.S.O.1990, C.s.22 ("SPPA"), the Board is required to give "reasonable notice of the hearing" to each of the parties to a proceeding. Based on the affidavit evidence cited above, I have concluded that it is more likely than not that the respondents Phoebe Lee and Joseph Lee have actual notice of this proceeding. I find that the Board's efforts to provide notice to these two respondents have satisfied its statutory duty under s.6(1).
With respect to Yu Sheung Tony Kong and 2887126 Canada Inc. The affidavit evidence filed does not provide a basis for finding that delivery of documents to Yu Sheung Tony Kongand 2887126 Canada Inc., at the Steeles Avenue address of Imperial Buffet Inc., is more likely than not to bring those documents to the attention of Kong or another officer of 2887126 Canada Inc. Although it appears that the two corporations have had shared employees and a common director or officer, Yu Sheung Tony Kong, he no longer has any connection with any of the addresses registered with the Ministry for these corporations (including 179 Bestview Drive, Toronto) and he is no longer a director of Imperial Buffet Inc. Mr. Kong did respond to the original complaint, but the affidavit evidence indicates that he may since have left Canada.
Accordingly, I am not prepared to make an order for validated or substituted service of documents on Yu Sheung Tony Kong and on 2887126 Canada Inc. by service on them at the address of Imperial Buffet Inc. on Steeles Avenue West. In finding that an order for validated or substituted service is not appropriate in this case, I am guided by civil jurisprudence holding that, in general, an order for substituted service should be made only if it is probable that the party being served will receive actual notice: Babineau v. Babineau (1983), 32 C.P.C. 229 (Ont. Master). There is not a sufficient evidentiary basis for concluding that it is probable that documents delivered to Yu Sheung Tony Kong or to 2887126 Canada Inc. at 1881 Steeles Avenue West in North York, have or will come to their attention.
The Commission has made other efforts to deliver its documents to these two respondents. Pursuant to the Rules of Civil Procedure, the delivery of documents by mail to a corporation, at its last address registered with the Ministry of Consumer and Commercial Relations, would be deemed to be an effective alternative to personal service when the head office cannot be found at that address. Relying on the obligation of corporate directors to file current information with the Ministry, the Commission has sent the documents by mail to 2887126 Canada Inc. at the last address recorded with the Ministry. That address, in Cobourg, belonged to the restaurant where the complainant worked before it closed in 1996. The affidavit evidence of Kimberley Callahan states that the Commission has also attempted personal service on both Sheung Yu Tony Kong and the corporation at 179 Bestview Drive, Toronto, a residential address for Kong. Callahan states in her affidavit that the Commission has been advised by the solicitor for the current owner that the property was purchased from a "Ms Kong" in an arm's length transaction.
Although it appears that these additional efforts at delivery have not brought the Commission's materials to the attention of the two respondents, the Commission has satisfied me that it is entitled to rely on these efforts as effecting deemed delivery of the documents, in the absence of contrary evidence. Because the Commission is not intending to proceed against Sheung Yu Tony Kong (or against Imperial Buffet Inc.), the question of the whether there is actual notice will only be a potential issue with respect to 2887126 Canada Inc. I note that the affidavit of Pocock states that the corporation is in the process of dissolution, but that a certificate of dissolution has not been filed as of October 25, 1999.
Finally, I note that, in accordance with the requirement in s.6(1) of the S.P.P.A. to give parties reasonable notice of the proceeding, this Board has sent its notices of hearing addressed to 2887126 Canada Inc. by mail and courier to its last registered corporate address, as well as to the last available residential address for a corporate officer, and to 1881 Steeles Avenue West in North York.
The hearing in this matter will reconvene on a date to be set by the Registrar.
______________________ Katherine Laird