Comeau v. 1703381 Ontario, 2010 HRTO 758

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Victoria Comeau

Applicant

-and-

1703381 Ontario Inc., 1338310 Ontario Inc.,

1372715 Ontario Inc. and Lisa Graycheski

Respondents

case resolution conference decision

Adjudicator: Kaye Joachim

Date: April 6, 2010

Citation: 2010 HRTO 758

Indexed as: Comeau v. 1703381 Ontario

APPEARANCES BY

Victoria Comeau, Applicant ) On her own behalf

1703381 Ontario Inc., 1338310 Ontario Inc., ) No one appearing

1372715 Ontario Inc., Respondents )

Lisa Greycheski, Respondent ) On her own behalf

Introduction

1This is an Application filed on December 31, 2008, under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A telephone hearing was held on January 29, 2010, for the reasons described below.

2The complaint underlying the Application was filed with the Ontario Human Rights Commission on May 31, 2007, against Niagara Shoe Factory Outlet and Lisa Graycheski. The applicant alleged that the respondents discriminated against her with respect to employment on the basis of pregnancy contrary to sections 5 and 9 of the Code.

3The applicant began employment at the Niagara Shoe Factor Outlet in Fort Erie in February 2007. She informed Lisa Graycheski, the assistant manager, that she was pregnant on April 23, 2007. She received a telephone call at home on April 26, 2007, from Madelaine Klemm, who she understood managed a similar store in Niagara Falls.

4Ms. Klemm told the applicant that she was being laid off for lack of work. However, the record of employment subsequently issue stated the reason for the termination was “not suitable for position.”

5A few days later the applicant noticed an unfamiliar person working at the Fort Erie store. A former co-worker told the applicant that this was a new employee hired a few days earlier. The applicant also stated she had a conversation with a former co-worker who advised her that she (the co-worker) had been told that the applicant was let go because of her pregnancy.

The Pre-hearing Process

6The applicant named the respondent in this Application as the Niagara Shoe Factory Outlet in Fort Erie, Ontario. The record of employment listed the employer’s name and address as “Niagara Shoe” in Port Colbourne, Ontario.

7The applicant filed a statement of delivery (Form C) confirming that a copy of the Application had been hand-delivered to the Fort Erie office. The applicant subsequently provided the Tribunal with information that the corporate respondent had closed its Fort Erie location and she provided the Tribunal with an alternative address in Port Colbourne. This address is also consistent with the record of employment submitted by “Niagara Shoe” to the applicant. The Tribunal has sent its correspondence to the Port Colbourne address and it has not been returned.

8The Tribunal has been advised by KPMG Inc. that it is the Trustee in Bankruptcy in respect of 1372715 Ontario Inc. o/a Niagara Shoe Manufacturing (“137”). It also advised that there were three related retail operating companies that were not insolvent: 7003381 Ontario Inc. (“700”), 1338310 Ontario Inc. (“133”) and 1635556 Ontario Inc. (“163”). KPMG also advised that 700 and 133 operated as Niagara Shoe Factory Outlet retail stores and that Michael Klemm is/was a director or officer of 700 and 133.

9The applicant advised that retail shoe stores are still operating at the location of her previous employment, but under the name Brand Name Shoe Warehouse. The Tribunal has received correspondence from Mike Klemm on behalf of Brand Name Shoe Warehouse, who denied the information provided by KPMG Inc. and asserted that he had never been an employee, director or officer of either 700 or 133. He also advised that 133 is dormant, and with respect to 700 he referred the Tribunal to the Trustee in Bankruptcy for 137. He also submitted a Court Order dated December 12, 2008, indicating that KPMG had also been appointed as Interim Receiver of all of the property of 700. The Court order does not appear to place a stay of proceedings against 700.

10In a prior Interim Decision, 2009 HRTO 1425, I determined that the following corporate entities may be the employer of the applicant and therefore respondents to this Application: 137, 700 and 133, regardless of the name under which they are operating.

11I also held that as there is a stay of proceedings against 137 the Tribunal would not proceed against it. However, as there was no stay operating against the remaining corporations and I advised them that the Tribunal would continue the proceedings against them and the personal respondent.

12In two additional prior Interim Decisions, 2009 HRTO 1425 and 2009 HRTO 1698, the corporate respondents were advised that a Tribunal application is a legal proceeding, which, if a violation of the Code is found, may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code.

13The corporate respondents (apart from 137) were directed to file a Response (Form B) within 15 days of the date of those Interim Decisions, together with an explanation why the Response was not filed earlier and should be accepted. They were further advised that if the Responses were not received, the Tribunal would proceed without further notice to them, and that the Tribunal may take any or all of the other steps set out in Rule 3.2.

14The corporate respondents have not filed a Response. In an Interim Decision, 2009 HRTO 1886, the Tribunal directed that the hearing would proceed either in person or on the telephone at the applicant’s option. The applicant opted to make oral submissions and the teleconference was held on January 29, 2010.

15Mr. Klemm, despite asserting that he was not in any way involved, advised that he would not be available but asked that the Tribunal provide him with a “transcript” of the teleconference. The Tribunal does not record or transcribe its proceedings.

16Finally, on January 4, 2010, Mr. Klemm wrote to the Tribunal stating that he had researched the situation and advised that the applicant had worked for 137 and her paycheques were paid by 137 via a Royal Bank Account. He provided the bank account number. He also asserted that 700 and 133 had never had any bank accounts or a payroll account and that the applicant had never worked for 700 or 133.

17This information was provided to the applicant and she was invited to review her employment records and pay stubs and provide any evidence she had and to make submissions on whether she was employed or paid by 137, 700 or 133. The applicant did not file any further documents or submissions.

Notice of Proceedings against the Corporate Respondents

18I am satisfied that the Tribunal has given notice to the corporate respondents 137, 700 and 133 that these proceedings were continuing and that they were parties to the proceedings. Accordingly, I find that it is fair, just, and expeditious to determine the Application against them in their absence

Decision with respect to the Corporate Respondents

19The interrelationship between the various numbered companies operating under the name “Niagara Shoes” is very unclear. Before it before it can issue an order against an entity, the Tribunal must have evidence that the entity is actually the one involved in the events complained of.

20I recognize that it is difficult for an applicant to obtain the requisite corporate searches and to make legal arguments about the legal entity that is legally responsible for alleged acts of discrimination. Nonetheless, the onus rests on the applicant to establish that she delivered the Application to the proper party and that the proper party responsible for the alleged discrimination is before the Tribunal.

21In this case, I am not satisfied that the applicant has established that she was employed by either 700 or 133 and therefore I am unable to make any determinations or orders against them. The Application against 700 and 133 is dismissed.

22There is evidence before me that the applicant was employed by and paid by 137. However, there is a stay of proceedings against 137 and the Tribunal cannot continue the Application in light of that stay.

23In the prior Interim Decision 2009 HRTO 1886, dated November 6, 2009, the applicant was advised that she had 30 days to advise the Tribunal whether she intended to apply to the Bankruptcy Court to have the stay against proceedings against 137 lifted, or the Tribunal would treat the Application against 137 as abandoned. The applicant did not take any steps to lift the stay against 137. Accordingly, the Application against 137 is dismissed as abandoned.

Decision with respect to the Personal Respondent

24The personal respondent attended on the conference call briefly and confirmed her response that she was a mere employee and not involved in any hiring or firing decisions. She confirmed that she did not advise Mr. Klemm that the applicant was pregnant and had no information why the applicant was laid off. The applicant did not present any evidence to dispute the personal respondent’s evidence.

25I am not satisfied that the applicant has established that the personal respondent played any role in the corporate respondents’ decision to terminate the employment of the applicant. The Application is therefore dismissed against the personal respondent.