Dale Mead v. Loop Enterprise Inc., 2011 HRTO 879

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dale Mead

Applicant

-and-

Loop Enterprise Inc.

Respondent

Interim Decision

Adjudicator: Douglas Sanderson

Date: May 5, 2011

Citation: 2011 HRTO 879

Indexed as: Mead v. Loop Enterprise

1This is an Application filed December 8, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination because of disability and sex, including sexual harassment, in employment. The purpose of this Interim Decision is to address the corporate respondent’s renewed request for an adjournment.

Background

2The Tribunal scheduled this is matter for hearing on May 9, 10 and 11, 2011. In an Interim Decision dated April 21, 2011, 2011 HRTO 810, the Tribunal denied the corporate respondent’s adjournment request and directed the parties to do certain things to meet their disclosure obligations. In an earlier Interim Decision dated July 5, 2010, 2010 HRTO 1461, the Tribunal determined that the Application is stayed against the individual respondent by operation of section 69(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”). In another Interim Decision dated January 25, 2011, 2011 HRTO 173, the Tribunal denied the applicant’s Request for Order seeking to add Mutual Synergy Group Inc. (“Synergy”) as a respondent in these proceedings.

3Consequently, the corporate respondent, Loop Enterprise Inc. (“Loop”), is the only respondent to the Application. In a letter dated June 29, 2010 to the Tribunal addressing whether mediation would be a fruitful exercise, counsel for Loop, Mr. Geiger, noted that Loop existed as a corporate entity, but had no employees or assets. Mr. Geiger has reiterated this assertion on a number of occasions in the proceeding and there is no reason to believe he is incorrect in that regard.

4Consequently, this case presents the real possibility that there will be no respondent, legally and practically speaking, to respond to the Application or to comply with any remedial order the Tribunal might make. This state of affairs has existed since July 5, 2010. Nonetheless, the applicant chose to proceed to a hearing, as she is entitled.

5On April 19, 2011, Mr. Geiger requested adjournment of the hearing and that, instead, the parties participate in mediation on May 9, 2011. Counsel for the respondent cited difficulty in preparing the case given the status of Loop, the need to obtain instructions from Loop’s insurer regarding a possible defence and to gather documents. The Tribunal denied the request for the reasons set out in the Interim Decision of April 21, 2011.

Renewed Request

6On April 21, 2011, Mr. Geiger provided further submissions regarding its adjournment request in response to submissions from counsel for the applicant, Mr. Fisher. These submissions arrived after the issuance of the Interim Decision of the April 21, 2011. In response to this Interim Decision, counsel for Loop provided further submissions in a letter dated April 29, 2011, requesting the Tribunal to reconsider its decision to deny the adjournment request, which the Tribunal interprets to be a renewed request for the adjournment of the hearing. Counsel for Loop requested a response to the renewed request in a letter dated May 4, 2011.

7The essence of the submissions coming after the Interim Decision of April 21, 2011, is that the Tribunal has failed to appreciate the difficulties faced by counsel for Loop or the implications of the involvement of the insurer in the matter. Loop is no longer in business and has no employees. Mr. DeSanto, the owner, cannot be a director of a company because of his bankruptcy and apparently is no longer an officer of the company. Consequently, there is no one from Loop that may instruct counsel. The insurer in the matter may have an obligation to fund defence of the application, but cannot give instructions regarding the defence because that is the insured’s, i.e., Loop’s, responsibility, although the insurer may give instructions to attempt to settle the matter and thereby avoid the cost of defence.

8Counsel for Loop also takes issue with the Tribunal’s comment in the Interim Decision that the existence of the insurance policy is not a new fact. In this regard, counsel indicates that the existence of a policy does not preclude coverage issues. Counsel indicates that there may be coverage issues, but that he is not privy to them because of his role of defence counsel. He also points out that responsibility for defending the Application was not finalized until the Tribunal refused the respondent’s Request for Order to add Synergy as a related or successor employer to Loop. Until that point, it was unclear what, if any, role the insurer would have in defending the Application. Counsel submits that he could only seek instructions from the insured and the insurer after if was clear that Synergy would not be added as a respondent.

9In these circumstances, counsel for Loop states that he may have to withdraw from the matter if he is forced to conduct a defence, i.e., if the hearing proceeds.

DECISION

10For the reasons that follow, the renewed request to adjourn the hearing is denied.

11The case is somewhat unusual because of the status of the respondents. The circumstance where no one may be entitled to instruct Loop’s counsel is undoubtedly difficult. This circumstance, however, is not new and has been evident since at least July 5, 2010. Moreover, the situation appears to be intractable because there does not seem to be any way to resolve counsel’s quandary regarding instructions. In other words, on the facts presented to date, it appears that there will never be anyone who can instruct respondent’s counsel in the defence of the Application. Counsel for Loop has not explained how adjourning the hearing will address this fact.

12Accordingly, it seems that Loop may not attend a hearing of the Application regardless of when it occurs. Such “default hearings” are unusual, but not unprecedented. The Tribunal also has a systemic interest in dealing with matters as expeditiously as possible and the applicant appears eager to proceed. In these circumstances, adjournment serves no purpose.

13The fact that there may be “coverage issues” in respect of Loop’s insurance policy is not a reason to adjourn the matter and such issues are in any event a matter between Loop and the insurer.

14I also do not accept that respondent’s counsel has not had sufficient time to obtain instructions from the insurer. On his account, it became clear that the insurer would be called upon to defend the matter only after the Tribunal rejected the applicant’s Request to add Synergy as a respondent. The Tribunal rendered that decision on January 25, 2011; therefore, there was ample to time to seek and obtain instructions.

15The Application was filed on December 8, 2009. There was no suggestion that anyone other than Loop would defend the Application until October 2010 when the applicant sought to add Synergy as a respondent. There appears to have been no reason not to engage the insurer in this time, as prudence and possibly the terms of the insurance policy might suggest. Accordingly, the suggestion that respondent’s counsel has had inadequate time to seek and receive instructions is not supported by the facts.

Mediation

16Loop seeks to substitute mediation for the scheduled hearing in this matter. Such substitution is unnecessary. As noted in the previous Interim Decision, mediation-adjudication is available in appropriate cases, pursuant to Rule 15A of the Tribunal’s Rules of Procedure. The parties should expect that the presiding Vice-chair will explore mediation-adjudication with them at the outset of proceedings on May 9. Should there be no mediation or if mediation proves unsuccessful, the matter will proceed to hearing.

17The request for adjournment is denied.