Okunbo v. Nadiscorp Logistics Group, 2009 HRTO 370

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ebaita Okunbo

Applicant

-and-

Nadiscorp Logistics Group Inc., Carol Little, Glenn Morton and Grant Hunt

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: March 31, 2009

Citation: 2009 HRTO 370

Indexed as: Okunbo v. Nadiscorp Logistics Group

1This is an Application filed on March 12, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (“the Code”). The purpose of this Interim Decision is to decide on the applicant’s request that the Tribunal deal with the Application on an expedited basis, as well as address issues relating to service on some individual respondents.

2The Application alleges discrimination and harassment in employment, on the basis of race, colour, ancestry, place of origin and ethnic origin. Until September 2008, when his employment was terminated, the applicant worked for Nadiscorp Logistics Group Inc. (Nadiscorp). Essentially, the applicant alleges that his termination was the culmination of a series of incidents in which the company treated him and other workers unequally because of their race. Of the three personal respondents, one (Glenn Morton) is a supervisor whom the applicant alleges harassed him on the basis of race throughout several years of his employment. Two (Carol Little and Grant Hunt) were the Director of Human Resources and Senior Operations Manager respectively, whom the applicant alleges failed to respond to his complaints of discriminatory treatment and ultimately effected the termination of his employment.

3In the Application, the applicant asks for financial compensation for loss of earnings, other employment-related losses, and general damages. He also asks for formal letters of apology, a letter of reference, training to be given to the individual respondents, and certain policies to be implemented by the company.

REQUEST TO EXPEDITE PROCEEDINGS

4With the Application, the applicant filed a Request to Expedite Proceedings. As support for the Request, the applicant states that Nadiscorp is insolvent and is under a court-enforced receivership. He has provided a copy of the Court Order appointing a Receiver (dated February 3, 2009) as well as a copy of the Court Order subsequently authorizing a sale of the assets, among other things (February 20, 2009).

5The applicant states that the Receiver has been authorized to file an assignment in bankruptcy on behalf of the company at such time it deems appropriate. Consequently, he believes that speedy resolution of the complaint is urgent since any day now the company may be officially assigned into bankruptcy.

6The applicant has made submissions in support of his Request which focus on the public interest remedies he has requested and the importance of achieving those quickly. He is also concerned that if the company is discharged from debt to unsecured creditors, he will not have a chance to recover any potential orders for lost earnings and other employment-related losses. He also refers to the possibility of harm to the individual respondents, who may have difficulty in repaying any possible financial losses in comparison to the company. Much of his Request is directed at the possibility of expedited mediation, and it appears that his hope is that he will be able to reach a settlement of the Application that will enable him to achieve the goals of his Application.

7I have considered the applicant’s submissions. However, the Court Order of February 3, 2009 contains provisions staying any proceedings against Nadiscorp. The Order states, in paragraph 8:

THIS COURT ORDERS that no Proceeding against or in respect of Nadiscorp or the Property shall be commenced or continued except with the written consent of the Receiver or with leave of this Court and any and all Proceedings currently under way against or in respect of Nadiscorp or the Property are hereby stayed and suspended pending further Order of this Court.

8This Application is therefore stayed as against Nadiscorp pending leave of the Ontario Superior Court of Justice (Commercial List) or written consent of the Receiver.

9In light of the stay, there is no reason to expedite the proceedings at this stage for the proceedings against Nadiscorp cannot continue unless the applicant obtains leave of the Court or written consent of the Receiver. The Request to Expedite the proceedings is therefore denied.

CONTINUATION OF PROCEEDINGS

10If the applicant wishes to pursue his Application he must either bring a motion in the Superior Court to lift the stay or get written consent from the Receiver within 60 days of the date of this Interim Decision. The applicant is directed to advise the Tribunal of his intentions in writing within 30 days of the date of this Interim Decision.

THE INDIVIDUAL RESPONDENTS

11There may be an issue about whether the effect of the Order is to stay the Application as against the individual respondents as well as against Nadiscorp and whether the applicant must obtain leave of the Court or consent of the Receiver with respect to his claim against the individual respondents. As set out above, Paragraph 8 of the Court Order stays proceedings “against or in respect of Nadiscorp”.

12It is not necessary to determine this issue at this time, and the Tribunal will wait for the applicant to decide on his course of action and advise the Tribunal as set out in paragraph 10 above. In any event, there is a question as to whether two of the three individual respondents have received notice of these proceedings. The applicant provided Nadiscorp’s address as the address for service for all three individual respondents. The Tribunal sent Notice of the Application to the individuals at the address provided. Although the time for filing a Response to the Application has not yet elapsed, the time for filing a Response to Expedite has and no response has been received from any respondent.

13One of individual respondents (Glenn Morton) has contacted the Tribunal. He has indicated that he and the other individual respondents no longer work at that address, and that there will be difficulty contacting the others as a result.

14Given this information, although the Tribunal’s correspondence has not been returned, it is not clear that the two remaining individual respondents have received notice of the Application. The applicant has been asked to provide alternate addresses for service for those individuals. Among other things, he states:

Moreover, the Receiver should be in holding of all employee records for mailing outstanding pay and T4 slips. I would like to inform you, that even if I were to contact the Receiver myself, I would not be privy to the personal information of former Nadiscorp’s employees. I would assume that the HRTO staff would have the capacity of requesting the personal information of former Nadiscorp employees from the Receiver. Once again, here is the Receiver’s information:

15The Tribunal understands from the above that the applicant wishes the Tribunal to order the Receiver to provide contact information for the two individual respondents who have not contacted the Tribunal. Rule 1.7(p) of the Tribunal’s Rules of Procedures allows the Tribunal, in order to provide for the fair, just and expeditious resolution of any matter before it, to require a party or other person to produce any document, information or thing. The Tribunal therefore requests the submissions of the Receiver on whether it should direct the receiver to provide contact information for Carol Little and Grant Hunt, in order to serve them with notice of the Application.

16The Tribunal will provide a copy of the Application along with this Interim Decision to counsel for the Receiver, Heath P.L Whiteley of Gowling Lafleur Henderson LLP, 1600-1 First Canadian Place, 100 King Street West, Toronto, Ontario, M5X 1G5.

17The Receiver is requested to respond to the question set out in para.15 above, by no later than Monday, April 6, 2009. Its correspondence should be sent to the Tribunal, with a copy to the applicant.

18I am not seized.