HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
Delano Brown
Complainant
-and-
Trebas Institute Ontario Inc.
George Hood, Jason Schreiner, Ron Brandt, Tim Bulmar
Respondents
INTERIM DECISION
Adjudicator: Susan Serena
Human Rights Tribunal of Ontario 400 University Avenue, 7th Floor Toronto ON M7A 1T7 Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946 TTY (416) 314-2379 / 1-800-424-1168 E-mail hrto.registrar@jus.gov.on.ca Website www.hrto.ca
INTRODUCTION
1This proceeding relates to a complaint filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) by the complainant, Delano Brown, (the “complainant” or “Brown”) against the responding parties Trebas Institute Ontario Inc., (“Trebas”), George Hood, Jason Schreiner, Ron Brandt and Tim Bulmar.
THE REMOVAL OF THE PERSONAL RESPONDENTS GEORGE HOOD, JASON SCHREINER AND TIM BULMAR
2Prior to the commencement of the hearing in this matter the parties advised the Tribunal that they had agreed to remove George Hood (“Hood”), Jason Schreiner (“Schreiner”) and Tim Bulmar (“Bulmar”) as respondents, on the following terms:
(a) The respondents Trebas, Hood, Schreiner and Bulmar agree that, within the meaning of subsection 45(1) of the Code that Hood, Schreiner and Bulmar were, at all material times, an “employee” of the corporate respondent Trebas.
(b) Every act or thing done or omitted to be done by Hood, Schreiner and/or Bulmar was done or omitted to be done in the course of their employment and shall be deemed to be an act or thing done or omitted to be done by Trebas.
(c) The respondents Hood, Schreiner and Bulmar agree that they will appear before the Tribunal to testify on behalf of Trebas without the requirement for Trebas to serve them with subpoenas.
3Having regard to the agreement of the parties, the Tribunal orders that George Hood, Jason Schreiner and Tim Bulmar be removed as Respondents in these proceedings, on the terms set out above.
MOTION BY RONALD BRANDT TO BE REMOVED AS A RESPONDENT
4At the outset of the hearing, the Respondent Ronald Brandt (“Brandt”) asserted that he should also be removed as a respondent in these proceedings on the same terms that Hood, Schreiner and Bulmar were removed as Respondents. In support of his position that he was engaged by Trebas as an employee (as opposed to an independent contractor) Brandt provided the Board with photocopies of the Record of Employment dated October 19, 2004, a 1995 T-4 Supplementary and an earnings statement for the pay period ending September 24, 2004 all of which were issued to him by Trebas.
5The representative of Trebas advised the Tribunal that he was not prepared to agree, on behalf of Trebas, that at all material times Brandt was an employee of Trebas.
6In view of the position taken by Trebas the Tribunal will not remove Brandt as a respondent at this stage of these proceedings.
7Even if the Tribunal was able to find that the documents submitted by Brandt were sufficient to establish that he was an employee of Trebas this would not mean that he must or should be removed as a Respondent because such a finding does not mean that Trebas accepts that every act or thing done or omitted to be done by Brandt in the course of such employment shall be deemed to be an act or thing done or omitted to be done by Trebas as it had agreed with respect to Hood, Schreiner and Bulmar.
8Notwithstanding the above, the Tribunal directs Trebas to forthwith review its position with respect to Brandt and to advise the parties and the Tribunal whether it is prepared to permit Brandt to be removed as a Respondent on the same terms that were agreed to with respect to the other Personal Respondents.
CONTINUATION OF THE HEARING ON OCTOBER 24, 25 AND 26, 2006
9By letter dated October 1, 2006, the Respondent Brandt advised the Tribunal that he was unable to attend the hearing dates scheduled for October 24 to 26, 2006 because of work related training in California. He also states that if his participation at the hearing is required that he can appear with ample notice.
10Written notice of the October 24 to 26, 2006 hearing dates was provided to Brandt on June 9, 2006. Furthermore, in a letter dated May 31, 2006 the parties were consulted with respect to their availability on these dates. Therefore, Brandt has had ample notice that the hearing would be continuing on October 24, 25 and 26, 2006.
11In the circumstances, the Tribunal is not prepared to adjourn the hearing dates scheduled for October 24, 25 and 26, 2006 unless all of the parties to these proceedings agree to adjourn some or all of these dates. The obligation to obtain that agreement rests with the party seeking the adjournment
12In the absence of that agreement, the hearing in this matter will continue on October 24, 25 and 26, 2006 whether or not Brandt is in attendance at the hearing. Obviously if Brandt does not attend the hearing, the hearing will proceed without his input.
Dated at Toronto, this 5th day of October, 2006.
“Signed By”
Susan Serena
Member