Michael Grzesiak v. DOT Benefits Corp. and Martin Shaw, 2011 HRTO 245

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Grzesiak

Applicant

-and-

Ontario Human Rights Commission

Commission

-and-

DOT Benefits Corp. and Martin Shaw

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: February 3, 2011

Citation: 2011 HRTO 245

Indexed as: Grzesiak v. DOT Benefits

WRITTEN SUBMISSIONS BY

Michael Grzesiak, Complainant ) John Evans, Counsel

DOT Benefits Corp. and Martin Shaw ) No one

Ontario Human Rights Commission ) Anthony Griffin, Counsel

INTRODUCTION

1On October 29, 2008, the Tribunal issued a final Decision in respect of this Complaint, which was referred to the Tribunal by the Commission pursuant to section 36(1) of the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In its Decision, the Tribunal found that the respondents had infringed certain of the complainant’s rights under the Code and, among other things, ordered them to pay damages to the complainant, as well as pre and postjudgment interest: 2008 HRTO 206.

REQUEST FOR ORDER DURING PROCEEDINGS

3On August 23, 2010, the complainant filed a Request for Order during Proceedings (“the Request”) seeking to have the Tribunal’s October 29, 2008 Decision amended in the following ways:

1. By correcting the name of the corporate respondent to DOT Benefits Corp.; and
2. To add 1263699 Ontario Limited as a party to the Complaint and to make an order that 1263699 Ontario Limited is jointly and severally liable for all amounts ordered as against the corporate respondent.

4The complainant has filed a Statement of Delivery indicating that his Request was delivered to the Commission and to the respondents. The Commission filed a response to the Request supporting both aspects of the complainant’s Request. The respondents have not responded to the Request.

REQUEST TO CORRECT NAME OF THE CORPORATE RESPONDENT TO “DOT BENEFITS CORP.”

5The first aspect of the complainant’s request is readily addressed pursuant to the Tribunal’s power under s. 21.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) to correct typographical and similar errors in its Decisions or Orders.

6The complainant submits that, in its Decision in this matter, the Tribunal inadvertently referred to the corporate respondent as “DOT Benefits Corporation,” whereas the proper legal name for the corporate respondent is “DOT Benefits Corp.” The Commission concurs.

7Having reviewed the material in the Tribunal’s file, I agree that the reference to the corporate respondent in the Tribunal’s October 29, 2008 Decision as “DOT Benefits Corporation” was a typographical error on the part of the Tribunal and is therefore the sort of error which may be corrected pursuant to s. 21.1 of the SPPA which states:

A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order.

8Other than the October 2008 Decision, all of the materials in the Tribunal’s file refer to the corporate respondent as “DOT Benefits Corp.”, including:

• The complainant’s November 26, 2001 Complaint;
• The Commission’s February 2005 correspondence to the parties and to the Tribunal giving notice of the Commission’s decision to refer the Complaint to the Tribunal;
• The respondents’ Statement of Facts, motion materials, November 2008 Request for Reconsideration, November 2008 Notice of Appeal to the Ontario Superior Court; and May 2009 Application for Judicial Review of the Tribunal’s Decision; and
• All of the correspondence to and from the Tribunal, including various pieces of correspondence from the respondents’ counsel.

9In all the circumstances, the name of the corporate respondent in the Tribunal’s October 29, 2008 Decision and the Orders contained is corrected to read “DOT Benefits Corp” and the Decision is amended accordingly.

REQUEST FOR ORDER THAT 1263699 ONTARIO LIMITED IS JOINTLY AND SEVERALLY LIABLE FOR ALL AMOUNTS AS ORDERED AGAINST DOT BENEFITS CORP.

10The complainant also asks the Tribunal to make an Order directing that 1263699 Ontario Limited is jointly and severally liable for all amounts as ordered against the corporate respondent in its October 29, 2008 Decision. In support of his Request, the complainant submits that the corporate respondent has failed to pay him any of the monies it was required to pay him by the Tribunal’s October 29, 2008 Order. The complainant further alleges that the corporate respondent changed its name to 1263699 Ontario Limited on June 25, 2008, which was after the conclusion of the hearing before the Tribunal in August 2007 and before it released its final Decision on October 29, 2008. The complainant suggests that the corporate respondent changed its name in an attempt to avoid enforcement of the Tribunal’s Decision. However, the complainant does not make any submissions with respect to the steps he has taken to enforce the Tribunal’s Decision or whether the change in the corporate respondent’s name has impeded his efforts in that regard.

11The Commission submits that this aspect of the complainant’s Request ought also to be granted pursuant to s. 21.1 of the SPPA.

12It is not altogether clear to me at this point that the failure of the October 29, 2008 Decision to make orders against “1263699 Ontario Limited” is the sort of error which may be corrected pursuant to s. 21.1 of the SPPA. Moreover, even if I were inclined to regard the Decision’s identification of the corporate respondent as “DOT Benefits Corp.” as an error which might be corrected pursuant to s. 21.1, the complainant in this matter does not actually seek to have the name of the corporate respondent corrected to “1263699 Ontario Limited”. Rather, he seeks to have “1263699 Ontario Limited” added as a party to the Complaint and to have the Tribunal’s October 29, 2008 Orders made effective on a joint and several liability basis against both “Dot Benefits Corp.” and “1263699 Ontario Limited.” This request to have the Tribunal’s orders made effective on a joint and several liability basis against two corporate entities would seem to be at odds with the complainant’s position that the corporate respondent has merely changed its name.

13In all of the circumstances, I am not prepared to grant the complainant’s Request that the Tribunal amend its October 29, 2008 Decision and the Orders contained in it to make them effective against DOT Benefits Corp. and 1263699 Ontario Limited on a joint and several liability basis. However, in the event that the complainant and/or the Commission wish to make further submissions seeking to have the name of the corporate respondent corrected to “1263699 Ontario Limited”, they may do so within 28 days of the date of this Decision. Any submissions filed in this regard should also address whether the correction sought falls within the scope of the Tribunal’s powers under s. 21.1 of the SPPA.

14Alternatively, the complainant may wish to consider whether the relief he seeks may be available from the courts during the course of enforcement proceedings. In this regard, I draw the parties’ attention to s. 19 of the SPPA which states:

19. (1) A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such.

(2) A party who files an order under subsection (1) shall notify the tribunal within 10 days after the filing.

(3) On receiving a certified copy of a tribunal’s order for the payment of money, the sheriff shall enforce the order as if it were an execution issued by the Superior Court of Justice.

15I am not seized.