Rosemary Mifsud v. 341822 Ontario Inc., 2011 HRTO 856

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rosemary Mifsud

Applicant

-and-

341822 Ontario Inc., Alan Bowman, Colin Bowman,

Leean Bowman and James Wheeler

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: May 3, 2011

Citation: 2011 HRTO 856

Indexed as: Mifsud v. 341822 Ontario

INTRODUCTION

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 17, 2010, alleging discrimination on the basis of disability in employment, and reprisal or threat of reprisal. The Application listed the individual respondent, Alan Bowman, as the contact person for the organizational respondent.

2On September 13, 2010, the Tribunal received separate Responses to the Application from the individual respondents, Leean Bowman, Colin Bowman, and James Wheeler. The Tribunal also received an additional separate Response on behalf of the organizational respondent, indicating that the individual respondent, Colin Bowman, was the person authorized to negotiate and bind the organization with respect to the Application. This Response also indicated that the organizational respondent’s Response consisted of the combined Responses of the individual respondents, Leean Bowman, Colin Bowman and James Wheeler, together with additional information contained in the Response, and that the individual respondent, Alan Bowman, declined to participate in this Response.

REQUEST FOR ORDER

3On September 15, 2010, the Tribunal received a Response, and a Request for an Order During Proceedings (“Request”), from the individual respondent, Alan Bowman. In his Request, Alan Bowman seeks, among other things, an extension of time and an order directing that delivery of the organizational respondent’s Response to the Application be deferred pending the hearing and determination of an application for an oppression remedy, to be brought by him in Superior Court, pursuant to section 248 of the Business Corporations Act, R.S.O. 1990, c. B.16, as amended. He also asks that, pending the hearing and determination of an application for an oppression remedy, no response to the Application purporting to be delivered on behalf of the organizational respondent be accepted or acted upon by the Tribunal without the express written consent of all of the individual respondents.

4Alternatively, Alan Bowman seeks an order directing that the Response of the organizational respondent be deferred pending the hearing and determination of the Application as against the individual respondents. In the further alternative, he seeks an order for directions to the organizational respondent as to how to proceed with a defence to the Application in light of the deadlock which existed between its shareholders during the period at issue in the Application.

5Initially, the other parties did not respond to the Request.

6On January 31, 2011, the Tribunal issued a Case Assessment Direction (“CAD”), directing the individual respondent, Alan Bowman, to advise the Tribunal and the other parties as to the status of any application for an oppression remedy brought in Superior Court, after which the other parties were provided with a further opportunity to make submissions in response to the Request.

PARTIES’ POSITIONS

7On February 10, 2011, the individual respondent, Alan Bowman, advised that no application for an oppression remedy has been brought in Superior Court. He also indicated that, during the time since the Responses to this Application were delivered, the individual parties have been able to work together on a relatively amicable basis in resolving their differences, and it was considered advantageous to all concerned to avoid the cost of court proceedings.

8Alan Bowman disagrees, however, that the individual respondent, Colin Bowman, has any authority to negotiate on behalf of, or to bind, the organizational respondent. Further, he does not wish to be taken as having adopted anything contained in any Response delivered by the remaining individual respondents or by the organizational respondent.

9In a Response to the Request, the remaining individual respondents submit that the Request should be dismissed. They submit, among other things, that Alan Bowman was not at any time in a position to make an application for an oppression remedy and that the day-to-day operations of the organizational respondent have never been deadlocked. They submit that Colin Bowman is Vice-President and a Director of the organizational respondent, and had authority to file a Response on its behalf.

10With respect to Alan Bowman’s alternate request that the Response of the organizational respondent be deferred pending the hearing and determination of the Application as against the individual respondents, the remaining individual respondents submit that severing the process could prejudice the defence of these respondents or may allow for conflicting results. They submit that there are no separate facts or circumstance that would give rise to having two separate hearings.

11In the absence of an application for an oppression remedy in Superior Court, the applicant does not support Alan Bowman’s Request.

DECISION

12As it appears that the individual respondent, Alan Bowman, is not seeking an oppression remedy in Superior Court, his requests that the organizational respondent’s Response to the Application be deferred and not accepted by the Tribunal, pending such an application in Superior Court, is dismissed.

13Alan Bowman’s alternate request, that the Response of the organizational respondent be deferred pending the hearing and determination of the Application as against the individual respondents, is also dismissed. It appears that Alan Bowman is essentially requesting that the hearing of this Application be bifurcated. However, the allegations in the Application against the organizational respondent appear to be the same as the allegations against the individual respondents. In the circumstances, I can see no reasonable basis upon which the Response of the organizational respondent should be deferred.

14Finally, I also find that in the circumstances it is neither necessary nor appropriate for the Tribunal to provide directions to the organizational respondent as to how to proceed with a defence to the Application and I decline to do so.

15The Request of the individual respondent, Alan Bowman, is dismissed. The organizational respondent’s Response shall be delivered to the other parties. As all parties have indicated an interest in mediation, the Tribunal will schedule mediation.

16I am not seized.