Lukasik v. 611554 Ontario Inc., 2012 HRTO 1326

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Krystyna Lukasik

Applicant

-and-

611554 Ontario Inc. o/a Palm’s Court Restaurant and Nick Andreopoulos

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: July 5, 2012

Citation: 2012 HRTO 1326

Indexed as: Lukasik v. 611554 Ontario Inc.

WRITTEN SUBMISSIONS

Krystyna Lukaski, Applicant

Christopher Chenoweth, Counsel

611554 Ontario Inc. o/a Palm’s Court Restaurant and Nick Andreopoulos, Respondents

Ellen Low, Counsel

Introduction

1This Application is scheduled for hearing on August 7 and 8, 2012. This Interim Decision addresses the applicant’s request that the Application be amended to add Nick Andreopoulos as a personal respondent and the respondents’ request that the Application be dismissed.

2The Application was filed on August 3, 2010. It named Palm’s Court Restaurant as the respondent and identified Mr. Andreopoulos as the contact person for the respondent. The applicant was employed as a server at the restaurant. The restaurant was owned by a numbered company. Mr. Andreopoulos is a part owner of the numbered company.

3The Application alleges that the applicant’s hours of work were reduced after she returned to work in 2008 following a medical leave and that this was discriminatory and contrary to the Code.

4The Application was delivered to Mr. Andreopoulos and he filed a Response. According to the Response, the Palm’s Court Restaurant closed on or about August 9, 2009. The Response indicated that the Application should be dismissed because it was not filed within one year of the alleged discriminatory event and also because the substance of the Application had been appropriately dealt with by a decision of an Employment Standards Officer in respect of a complaint the applicant filed under the Employment Standards Act, 2000, SO 2000, c 41. That decision found that the applicant was entitled to additional severance pay.

5On May 15, 2012, the applicant filed a Request for Order During Proceedings asking that Nick Andreopoulos be added as a personal respondent. Counsel for the respondent filed a Response to the Request for Order During Proceedings opposing the Request. The Response to the Request for Order During Proceedings also asks the Tribunal to dismiss the Application as against the corporate respondent on the grounds that the Application is moot because the corporate respondent is no longer operating. In addition, the Response argues that the Application should be dismissed because there is no reasonable prospect that it will succeed.

Status of the corporate respondent

6According to information provided by the respondent, Palm’s Court Restaurant stopped operations on or about August 2009. A recent witness statement, prepared for the purpose of the Application, indicates that the corporate respondent “had a bank account until recently for tax purposes; however the Corporate Respondent is in the process of closing down the business entirely. The Corporate Respondent has no assets.”

7It is not clear that the corporate respondent no longer exists and it is therefore not clear that the Application as against the corporate respondent is moot. I am therefore not prepared to dismiss the Application against the corporate respondent at this time.

Request to add the personal respondent

8In Smyth v. Toronto Police Services Board, 2009 HRTO 1513, the Tribunal indicated that when addressing a request to add a personal respondent, the following are the appropriate questions:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

9In this case, it is clear that Mr. Andreopoulos was the directing mind of the corporate respondent restaurant. If the applicant’s allegations are true and if it is found that they constitute an infringement of the applicant’s Code-protected rights, the Tribunal could make a finding that Mr. Andreopoulos personally infringed the applicant’s Code-protected rights.

10While the status of the corporate respondent is not clear, it is possible that it does not have any remaining assets or that it will not have any assets by the time the Application is decided. The applicant could therefore effectively have no remedy if it is found that her Code-protected rights have been infringed. In these circumstances there is a compelling reason to add Mr. Andreopoulos as a personal respondent.

The effect of the decision of the Employment Standards Officer

11Section 45.1 of the Code provides as follows:

45.1 The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.

12The decision of the Employment Standards Officer concluded that the applicant was entitled to additional severance pay. The main issue before the Officer appears to have been the calculation of the applicant’s years of employment. While these issues might have some bearing on the Application, it cannot be said that the decision of the Employment Standards Officer appropriately dealt with the substance of the Application.

Request for Summary Hearing

13The Tribunal’s summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. It provides in part:

The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party’s request.

14Having reviewed the respondent’s request for a summary hearing, I have determined that it is not appropriate to hold a summary hearing in this case.

Was the Application filed in time?

15Section 34 of the Code provides as follows:

34. (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

16In my view, a determination of whether the Application was filed in time and in accordance with section 34 of the Code requires further evidence. This is an issue that will be dealt with at the hearing.

ORDER

17The applicant’s request to add Nick Andreopoulos as a personal respondent is granted.

18The respondents’ request that the Application be dismissed because the decision of the Employment Standards Officer has appropriately dealt with the substance of the Application is denied.

19The respondents’ request for a summary hearing is denied.