Abby Hoffmeyer v. Great Lakes Specialty Meats Ltd., 2010 HRTO 271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abby Hoffmeyer

Applicant

-and-

Great Lakes Specialty Meats Ltd., The Parks Companies, Sun Terra Farms Ltd., David James and Megan Jentz

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: February 6, 2010

Citation: 2010 HRTO 271

Indexed as: Hoffmeyer v. Great Lakes Specialty Meats

SUBMISSIONS

Abby Hoffmeyer, Applicant ) Kingsley Laurin, Counsel

Great Lakes Specialty Meats )

of Canada Co. ) Genevieve M. Debane, Counsel

Abby Hoffmeyer, alleges in his Application that Great Lakes Specialty Meats Ltd., David James, Megan Jentz, The Parks Companies and Sun Terra Farms Ltd. discriminated against him in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses the applicant’s Request for an Order During Proceedings to add Great Lakes Specialty Meats of Canada Co. as a respondent.

BACKGROUND

1The applicant was employed by Great Lakes Speciality Meats Ltd. as a general labourer. He alleges that the respondents refused to accommodate his disability, referring in particular to a number of incidents in November 2008 when he was assigned jobs he could not physically perform. The Application alleges that the applicant responded to these incidents by raising his need for accommodation with, amongst others, Megan Jentz in the Human Resources Department and David James, the Plant Manager, both of whom have been named as personal respondents. On December 2, 2008 David James told the applicant that his employment was terminated.

2The Application was filed with the Tribunal on August 5, 2009. On October 20, 2009 Great Lakes Specialty Meats Ltd. filed a Response which also appears to be on behalf of its employees, David James and Megan Jentz. No Response was provided by The Parks Companies or Sun Terra Farms Ltd.

3On December 2, 2009 the applicant filed a Request for an Order During Proceedings (the applicant’s “Request”) to add Great Lakes Specialty Meats of Canada Co. as a respondent on the grounds that Great Lakes Speciality Meats Ltd. had become Great Lakes Specialty Meats of Canada Co. as of August 19, 2009.

4On December 7, 2009 Great Lakes Specialty Meats of Canada Co. filed a Request for an Order During Proceedings (Great Lakes Specialty Meats of Canada Co.’s “Request”) indicating that it had been unaware of the Application at the time it purchased some of the assets of Great Lakes Specialty Meats Ltd. on September 2,

2009. Great Lakes Specialty Meats of Canada Co. requested that it be provided with more information (copies of the Application and all Responses) as well as an extension of time in order to file a Response to the applicant’s Request that it be added as a respondent.

5On Dec 21, 2009 the applicant filed a response to Great Lakes Specialty Meats of Canada Co.’s Request, consenting to the Request and providing arguments for why Great Lakes Specialty Meats of Canada Co., as a successor corporation, should be added as a respondent.

6On January 8, 2010 Great Lakes Specialty Meats of Canada Co. provided its submissions in response to the applicant’s Request. Great Lakes Specialty Meats of Canada Co. opposes the applicant’s Request that it be added as a respondent.

SUBMISSIONS

7The applicant argues that Great Lakes Specialty Meats of Canada Co is a successor corporation that is liable for the discriminatory conduct of the predecessor corporation, Great Lakes Specialty Meats Ltd., given the nature of the relationship between the two companies. The applicant relies on Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16, and quotes from the decision:

It is apporpriate to hold a successor corporation liable for the discriminatory conduct of an agent or its predecessor corporation where, as in this case, the agent is closely associated with the second corporation and the second organization carries on the business of its predecessor.

8The applicant asserts that Megan Jentz was an agent of the predecessor corporation and was, in part, responsible for the discriminatory treatment of the applicant and that she is closely associated with Great Lakes Specialty Meats of Canada Co. as she has been employed by them as a Human Resources manager.

9The applicant further asserts that Great Lakes Specialty Meats of Canada Co. carries on the business of its predecessor. The applicant argues that there is no indication that Great Lakes Specialty Meats of Canada Co. has changed its employees, its upper management, its suppliers or its clients, and that it did not undergo any restructuring or disruption in service when it took over Great Lakes Specialty Meats Ltd.

10Great Lakes Specialty Meats of Canada Co. states that it was incorporated on August 20, 2009 and that it purchased some of the assets of Great Lakes Specialty Meats Ltd. on September 2, 2009. It states that prior to the Asset purchase it was a rival to Great Lakes Specialty Meats Ltd. and the two companies do not have common officers or directors. Great Lakes Specialty Meats of Canada Co. acknowledges that it has employed Megan Jentz but denies that its upper management remains the same as Great Lakes Specialty Meats Ltd. It states it made no offer of employment to the former plant manager, David James, the other named personal respondent.

11Great Lakes Specialty Meats of Canada Co. asserts it was unaware of the Application at the time of the purchase and continues to have no knowledge of the circumstances surrounding the Application. It submits that it should not be added as a respondent because it should not be held liable for acts which occurred before its creation and the applicant was never an employee of Great Lakes Specialty Meats of Canada Co.

12Great Lakes Specialty Meats of Canada Co. relies on Great Atlantic & Pacific Co. of Canada Ltd. v. Ontario (Human Rights Commission), (1993) 1993 CanLII 8616 (ON CTGD), 13 O.R. (3d) 824 (Great A&P) for the proposition that in the absence of a successor rights provision in the Code similar to s. 63 of the Labour Relations Act and s. 13 of the Employment Standards Act there is no jurisdiction to add it, a complete stranger to the Application, as a respondent.

13Both the applicant and Great Lakes Specialty Meats of Canada Co. refer in their submissions to Khandaswami v. Norma Cable Tech, 2009 HRTO 1421 and the Canadian Human Rights Tribunal decision in Bouvier v. Metro Express, [1992] C.H.R.D. No. 8 (CHRT). I do not need to rely on these submissions or cases in order to render my decision.

DECISION

14The applicant’s Request to add Great Lakes Specialty Meats of Canada Co. as a respondent is dismissed. I accept the argument that Great A & P. is a general prohibition against successor organizations being named as respondents except in limited circumstances where there is a high degree of interrelationship between a successor and predecessor organization. In my view, the matter before me is more in line with the facts in Great A & P. than those in Curling. I am satisfied that Great Lakes Specialty Meats of Canada Co is a complete stranger to the Application given that the events that gave rise to the Application and the Application itself date from before Great Lakes Specialty Meats of Canada Co. was incorporated and given that the applicant has never worked for Great Lakes Specialty Meats of Canada Co. It is true that Great Lakes Specialty Meats of Canada Co. has now employed one of the personal respondents as a middle manager which may give rise to an argument that they now may have some knowledge of the circumstances surrounding the Application. However, this is hardly comparable to the situation in Curling where it was determined that the personal respondent was the directing mind of both the predecessor and successor organizations and that the establishment of a successor corporation became a means of avoiding liability.

15The fact that Great Lakes Specialty Meats of Canada Co. continues the business of Great Lakes Speciality Meats Ltd. is not an indicator that the organizations had a close relationship. I accept Great Lakes Specialty Meats of Canada Co. was a rival company and the two organizations did not share the same directors, officers and senior management. I am satisfied that Great Lakes Specialty Meats of Canada Co. was not closely related to the predecessor organization or established in order to avoid any identifiable liability. Again this distinguishes this matter from Curling.

16I am satisfied that there is an insufficient relationship between Great Lakes Specialty Meats of Canada Co. and Great Lakes Specialty Meats Ltd. to hold Great Lakes Specialty Meats of Canada Co. liable for any discriminatory act of Great Lakes Specialty Meats Ltd.. Consequently, I decline to add Great Lakes Specialty Meats of Canada Co. as a respondent.

17Great Lakes Specialty Meats of Canada Co. asks that in dismissing the applicant’s Request the Tribunal award it costs. The Tribunal will not consider this request as it has no authority under the Code to award costs.

18There is a further issue. Sun Terra Farms Ltd. and The Parks Companies were both named as respondents and have not provided Responses as required. It is not clear from the Application how these two entities are alleged to have breached the Code. The applicant is directed to provide written submissions to the other parties and the Tribunal within 14 days of this Interim Decision explaining why these entities are proper parties to the Application, including how they are alleged to have violated his right under the Code. The applicant is also directed to clarify whether it is his understanding that Great Lakes Specialty Meats Ltd. continues to exist as a corporate entity.

19Upon receipt and review of those submissions the Tribunal may issue further directions including directions to one or both those entities to file their Responses to the Application. I am not seized of this matter