HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gordon Russell
Applicant
-and-
2175033 Ontario Inc., Brute Manufacturing Limited
and Bangor Metal Corp.
Respondents
INTERIM DECISION
Adjudicator: Mary Truemner
Date: November 3, 2010
Citation: 2010 HRTO 2202
Indexed as: Russell v. 2175033 Ontario
[1] This is an Application filed on July 17, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”). The applicant alleges that he was discriminated against on the basis of disability during his employment with the respondent, Brute Manufacturing Limited (“Brute”), which culminated in the termination of his employment for allegedly discriminatory reasons.
[2] It would appear from the pleadings that the respondent, Bangor Metal Corporation (“Bangor”), owns Brute. The third respondent, 2175033 Ontario Inc. (the “numbered company”), is a company that purchased some or all of Brute’s assets near the end of the applicant’s employment. In submissions, the applicant refers to documents filed by the numbered company, and documents filed by John W. Mercer who is identified in the Application as the CEO of Brute and the owner of Bangor. The applicant maintains that while he is uncertain as to which of the respondents was responsible for his dismissal, the termination was discriminatory.
[3] The purpose of this Interim Decision is to address the failure of Brute and Bangor to file a Response, and to address the failure of the applicant and the respondents to follow the Tribunal’s direction to provide submissions on whether s. 46.3 affects Bangor.
NO RESPONSE FROM BRUTE AND BANGOR
[4] Neither Brute nor Bangor filed a Response, and the Tribunal issued an Interim Decision ([2010 HRTO 1775](https://www.minicounsel.ca/hrto/2010/1775)) requiring them to do so by October 1, 2010. That Interim Decision explained that if a Response is not received, the Tribunal may proceed without further notice to Brute and Bangor, and may take any or all of the steps set out in Rule 5.5 of the Tribunal’s Rules of Procedure. Neither Brute nor Bangor filed a Response as directed, although the Tribunal received further correspondence from Mr. Mercer dated September 1, 2010. He wrote that Brute and Bangor are insolvent companies with no assets or employees, and that neither company has the ability to hire legal counsel or to file a Response. However, his letter does not provide any further information to change the Tribunal’s earlier finding that there is no evidence with respect to proceedings under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (the “CCAA”), or regarding receivership proceedings to prevent the Application from continuing against Brute and Bangor.
[5] Rule 5.5 states reads as follows:
5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;
d) decide the matter based only on the material before the Tribunal.
[6] Mr. Mercer, in his letter to the Tribunal dated September 1, 2010, provided information with respect to which of the respondents was responsible for the applicant’s dismissal. This information implies that, if Bangor and Brute were participating in these proceedings, they would not accept all of the allegations in the Application, and that the numbered company is responsible for the applicant’s dismissal. Mr. Mercer has indicated that he is willing to offer assistance to the Tribunal, but he has also indicated that Bangor and Brute will not be participating in these proceedings.
[7] In these circumstances, Bangor and Brute are deemed to have waived their rights to participate in the proceedings, and the Application will proceed without further notice to Bangor and Brute. It is not appropriate at this stage to deem Bangor and Brute to have accepted all of the allegations in the Application given the appearance of conflicting evidence between the pleadings of the numbered company and Mr. Mercer’s correspondence to the Tribunal. As former CEO of Brute and former owner of Bangor, he may have valuable information to offer the Tribunal, but he is not a party. Unless he is called as a witness by a party, he will not be participating in the proceedings, and the Application will proceed without further notice to him.
S.46.3 OF THE CODE AND BANGOR
[8] In its previous Interim Decision, [2010 HRTO 1775](https://www.minicounsel.ca/hrto/2010/1775), the Tribunal directed all the parties to provide submissions by October 1, 2010 on whether s. 46.3 of the Code affects Bangor. They have not done so.
[9] Subject to any requests for mediation from the applicant or the numbered company in the interim, the Application will proceed to a hearing. The parties must be prepared at the commencement of the hearing to address the issue of whether s. 46.3 of the Code affects Bangor.
[10] I am not seized.
Dated at Toronto, this 3rd day of November, 2010.
“signed by”
Mary Truemner
Vice-chair