Angela Dewartz v. Fifty’s Deli & Restaurant, 2011 HRTO 2046

Human Rights Tribunal of Ontario

B E T W E E N:

Angela Dewartz Applicant

-and-

Fifty’s Deli & Restaurant Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: November 9, 2011 Indexed as: 2011 HRTO 2046

1Although this Application was filed on March 9, 2010, a Response was not filed until August 25, 2011 because correspondence from the Tribunal was being directed to the attention of Kate Papadopoulos, the former manager of the respondent restaurant. All correspondence from the Tribunal, including the Application and two Interim Decisions were returned to the Tribunal unopened.

2For reasons that are not entirely clear, Gus Kyriacou, a part-owner in the respondent restaurant, wrote an email to the Tribunal in May 2011 to advise that at the time of the events giving rise to the Application, he was a one-thirds part owner of the respondent, but that he worked in the kitchen and had no responsibility for the applicant’s employment. He further advised that the other part owners, Theo Papadopoulos, Kate Papadopolus and Eugene Simnos, had since sold their share in the restaurant. Mr. Kyriacou advises that he and his brother, Charlie Kyriacou, are now the owners of the respondent.

3A Case Assessment Direction (CAD), dated July 7, 2011, was sent to the parties advising the respondent to file a “proposed Response” along with written submissions explaining the reasons for the delay. The CAD was, for the first time, directed to Mr. Kyriacou’s attention. He responded initially by way of an affidavit, and then by filing a Response when directed to do so by the Registrar. Although the Tribunal had not indicated that it would accept the Response, the applicant filed a Reply.

4By Interim Decision dated September 7, 2010, 2010 HRTO 1828, the Tribunal found that the respondent had received notice, but was evading service and/or was refusing or choosing not to participate in the proceeding. Accordingly, the Tribunal deemed the respondent to have accepted all the allegations in the Application and waived all rights with respect to further notice or participation in this proceeding.

5I accept that because of the change in ownership the respondent did not have notice. While the respondent should have been opening the mail containing the Tribunal’s documents, which was addressed to the respondent, although directed to the attention of an employee who no longer worked there, it would appear that he did not. Accordingly, I set aside the Tribunal’s earlier decision deeming the respondent to have accepted all the allegations in the Application and waiving all rights with respect to further notice or participation. In addition, the Tribunal accepts the late delivery of the Response.

6The Tribunal will schedule a one-day hearing in this matter. At the hearing, in order to provide for the fair, just and expeditious resolution of the matter, the Tribunal may make further procedural directions under Rule 1.7 of the Tribunal’s Rules of Procedure, including directions about the order in which evidence will be presented, or limiting the evidence or submissions on any issue.

7Mr. Kyriacou professes to have little knowledge of the incidents that gave rise to the events in question, although he states he was aware that the applicant was unable to work because of a “physical issue” and that she required an operation. He has provided little other information in his Response except what appears to be current contact information for Ms Papadopoulos.

8According to the Response, the respondent is a corporation (although the legal name of it is unclear since the respondent uses both “Fifty’s Restaurant” and “Fifty’s Deli & Restaurant” in his documents). The respondent is directed to clarify the proper legal name of the respondent and provide any information concerning the corporate structure.

9The respondent’s attention is directed to s. 46.3(1) of the Human Rights Code, R.S.O. 1990 c. H.19 as amended, (the “Code”)which states:

For the purposes of this Act, except subsection 2(2), subsection s (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation … shall be deemed to be an act or thing done or omitted to be done by the corporation.

10As a result of this provision, the respondent may be deemed liable for the actions of Ms Papadopoulos.

ORDER

11In sum, I have made the following orders/directions in this matter:

• The Tribunal’s earlier decision deeming the respondent to have accepted all the allegations in the Application and waiving all rights with respect to further notice or participation is set aside;
• The Tribunal will accept the late Response filed on August 25, 2011;
• The respondent is directed to provide the correct name of the corporate respondent and any information concerning the corporate structure; and
• A one-day hearing will be scheduled in this matter.

12I am not seized of this matter.