HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Szabo

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Casa Industries, Michael Poley and Sheri Allison

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: June 22, 2007

Citation: 2007 HRTO 18

Indexed as: Szabo v. Casa Industries et al.

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 Interim Decision deals with a request by the Commission for a written hearing in this complaint, which alleges discrimination on the basis of disability in the dismissal of the Complainant from employment.

2The Tribunal finds, for the reasons that follow, that proper notice has not been provided to the estate of Sheri Allison, a Personal Respondent in this matter. The Tribunal also finds that the Commission has not shown how effective notice was given to Casa Industries, or the legal basis on which the Tribunal could make an order against it in the circumstances. Further, while the Tribunal finds that Mr. Poley has received notice of these proceedings from the Commission and the Tribunal, it also finds that the Commission has not proven that Mr. Poley received notice of the request for a written hearing.

3Accordingly, prior to considering this request, the Commission must provide:

(i) either evidence that notice of these proceedings and of the Commission’s request for a written hearing has been provided to the estate of Sheri Allison or notification that the Commission and Complainant request the removal of Sheri Allison as a Respondent

(ii) either evidence and submissions indicating how effective notice has been provided to Casa Industries and explaining the legal basis on which the Tribunal is asked to make an order against it or notification that the Commission and Complainant request the removal of Casa Industries as a Respondent

(iii) evidence of service of its request for a written hearing upon Michael Poley at his current address.

If this information is not provided by July 31, 2007, the request for a written hearing will be dismissed.

4The Tribunal emphasizes that if Mr. Poley wishes to oppose the request for written hearing or to participate further in these proceedings, he is required to advise the Tribunal immediately, and in any case no later than July 15, 2007.

BACKGROUND

5There are three Respondents named in this matter: two Personal Respondents (Michael Poley and Sheri Allison) and another Respondent, Casa Industries.

6By letter to the Tribunal dated May 1, 2007, the Commission requested that the Tribunal hold a written hearing in the above-noted matter. The Commission’s letter indicated: (i) that the Personal Respondent and co-owner of Casa Industries, Sheri Allison, has been deceased since November 2005 and (ii) that the Personal Respondent, Michael Poley, is currently operating the business as a sole proprietorship.

7The Commission included an affidavit setting out its contacts with Mr. Poley. The affidavit included no statement regarding service upon the estate of Ms. Allison.

8On May 3, 2007, the Registrar wrote to the parties, indicating that it appeared that no notice had been provided to Ms. Allison’s estate. The letter concluded:

The Commission and the Complainant are directed to advise the Tribunal of whether they intend to proceed with the Complaint as against Ms. Allison, her estate, and/or Casa Industries or whether they request that they be removed as Respondents. If they do intend to proceed against these parties, the Commission should advise the Tribunal as to how it has provided notice to Ms. Allison’s estate by May 15, 2007.

9On May 22, 2007, following an extension granted by the Tribunal, the Commission responded as follows:

Further to your letter dated May 3, 2007, the Commission is still in the process of conducting a search to locate the executor the estate of Sheri Lee Allison. If our office is unsuccessful at finding the executor the Commission may withdraw at a later time as against the estate.

ANALYSIS

A. Notice Requirements

10The Tribunal held in Sanford v. Koop, 2005 HRTO 28 at para. 21, that in most cases in which a respondent chooses not to participate, a written hearing will be appropriate if one is requested. In Lestage v. Rénozone Express Inc., 2006 HRTO 28, the Tribunal held that it is necessary to ensure that effective notice of the proceeding and the request for a written hearing is given to any respondent prior to a notice of written hearing being issued.

B. Sheri Allison

11The notice requirements upon a deceased respondent were addressed in Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. In that case, the Tribunal ordered that a deceased respondent be removed as a party where his estate had not received notice of the proceedings. The Tribunal held, at paras. 7 - 8, that if he continued as a party, there would have been a violation of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, the Tribunal’s Rules of Practice and the principles of fairness and natural justice. The Tribunal held as follows at para. 9:

The crux of the matter here is that Mr. Holer never received notice of the hearing and the allegations to be made against him at the hearing. Only his estate trustee, appointed by will or by order of the Ontario Superior Court of Justice, or a litigation administrator appointed by the Ontario Superior Court of Justice, could be served with notice of the hearing.

12Without notice to Ms. Allison’s estate of these proceedings and the request for a written hearing, the Tribunal cannot proceed with a hearing while she remains a party. If her estate is subject to an order against it, it is entitled to notice of the proceedings.

C. Casa Industries

13The naming of Casa Industries as a Respondent raises further complications. Unlike Corporations, partnerships and sole proprietorships are not legal persons. There are distinct legal rules governing their status in legal proceedings and their obligations and liability, as distinct from that of the individuals who own them.

14The structure of partnerships is governed by the Partnerships Act, R.S.O. 1990, c. P.5. Section 33 provides that a partnership is dissolved by the death of a partner.

15The inclusion of Casa Industries as a Respondent therefore raises issues of whether the Tribunal has jurisdiction to make an order against a partnership, against one that is dissolved, against one where the business name is now being used by a separate sole proprietorship and about the nature of notice to be given to such an entity and/or the former partners. The Commission has made no submissions on these issues, nor provided any evidence or submissions on whether notice has properly been given to Casa Industries. Without receiving such submissions, and without assurance that the partnership has been given legal notice in accordance with the law, the Tribunal cannot proceed with a notice of written hearing while Casa Industries remains a named Respondent.

16Accordingly, if the Commission wishes to proceed as against Casa Industries, it is required to provide submissions as to the legal basis on which it asks that an order be made against it and evidence and submissions as to how it has been given effective notice.

D. Michael Poley

17The various searches carried out by the Commission, set out in the affidavit evidence, generated three different addresses for Mr. Poley. His Driver Record and the current Business Names Report for Casa Industries (now a sole proprietorship) show a street address in Kanata (the “first Kanata street address”). An Equifax report for Mr. Poley gives this address as well as a post office box in Kanata (the “Kanata post office box address”). Finally, the business names report for the prior partnership at Casa Industries lists an apartment in Ottawa (the “Ottawa apartment address”).

18The Tribunal has communicated with Mr. Poley at the first Kanata street address. The Tribunal’s Notice of Initial Conference Call was sent to him at this address by courier and the Tribunal has confirmed with the courier company that it was delivered to him there, and that he signed for it on December 6, 2006. Mr. Poley did not attend on the Initial Conference Call, which was held on December 21, 2006, nor did he contact the Tribunal. The Tribunal Registrar’s May 3, 2007 correspondence to Mr. Poley was returned marked “Moved/Unknown”.

19Similarly, the affidavit evidence indicates that the Commission sent to the first Kanata street address by regular mail a letter dated December 1, 2006 notifying Mr. Poley of the referral, as well as its pleading dated January 31, 2007.

20The Commission sent its disclosure package to the first Kanata Street address by courier on January 26, 2007. The Commission included in its affidavit from the courier company the tracking details for this package. It appears that the package was delivered to M. Poley at a different street address in Kanata (the “second Kanata street address”) at 10:15 AM on February 6, 2007 following a request by the courier company for an address correction. This is a different address from any of the addresses located during the search and from the address to which all the other correspondence was sent.

21The Commission appears not to have noted the address at which the delivery was actually made because it then sent the pleadings, via courier, to each of the first Kanata street address, the Ottawa apartment address, and the Kanata post office box address on April 20, 2007. The affidavit indicates that the first two were returned indicating a move. The courier company’s tracking details for the third package, however, indicate that, once again, after various requests for address correction it was delivered to Mr. Poley at the second Kanata street address on April 27, 2007.

22It appears that the Commission then sent the request for a written hearing to the first Kanata street address by regular mail on May 1, 2007.

23Accordingly, while the Tribunal is confident that Mr. Poley has received notice of the proceeding, it cannot be certain that he has received notice of the request for written hearing, as it appears he may have moved from the first Kanata street address. Accordingly, the Commission is directed to send the request for written hearing and accompanying affidavit to the address at which the previous packages were actually delivered and to provide the Tribunal with the tracking details for the courier package. The Tribunal will also send Mr. Poley this decision to the second Kanata street address.

24If Mr. Poley wishes to oppose the request for written hearing or to participate further in these proceedings, he is required to advise the Tribunal immediately, and in any case no later than July 15, 2007.

ORDER

25In light of the deficiencies in notice, the Tribunal declines to issue a notice of written hearing. Accordingly, prior to considering this request, the Commission must provide:

(i) either evidence that notice of these proceedings and of the Commission’s request for a written hearing has been provided to the estate of Sheri Allison or notification that the Commission and Complainant request the removal of Sheri Allison as a Respondent

(ii) either evidence and submissions indicating how effective notice has been provided to Casa Industries and explaining the legal basis on which the Tribunal is asked to make an order against it or notification that the Commission and Complainant request the removal of Casa Industries as a Respondent

(iii) evidence of service of its request for a written hearing upon Michael Poley at his current address.

26If these are not provided by July 31, 2007, the request for a written hearing will be dismissed without further notice.