HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenlen George
Applicant
-and-
Tinnerman Palnut Engineered Products (Canada) Corp, A. Raymond Manufacturing Hamilton Inc., Carl Vegelj, Slave Banfi and Matthew Dusureault
Respondents
INTERIM DECISION
Adjudicator: Brian Cook
Indexed as: George v. Tinnerman Palnut Engineered Products (Canada)
WRITTEN SUBMISSIONS
Kenlen George, Applicant
Erin Hollock, Counsel
Tinnerman Palnut Engineered Products (Canada) Corp, A. Raymond Manufacturing Hamilton Inc., Carl Vegelj, Slave Banfi and Matthew Dusureault, Respondents
Richard Nixon, Counsel
Introduction
1This Interim Decision deals with a request by the respondents that some of the named corporate respondents and all of the personal respondents be removed as respondents. It also deals with the respondent’s request that the Application be deferred pending the conclusion of a proceeding before the Workplace Safety and Insurance Board (WSIB).
The Corporate Respondents
2In the Application, the applicant alleges that she experienced discrimination in employment on the grounds of disability, family status and reprisal, following a work-related injury that occurred in January 2009. The applicant’s employment was terminated on September 23, 2010. The applicant alleges that the termination of her employment was also discriminatory.
3Between the time of the work-related injury in January 2009 and the termination of the applicant’s employment in September 2010, there were changes affecting the ownership of the facility where the applicant worked.
4The parties agree that in January 2009, the applicant was employed by Tinnerman Palnut Engineering Products (Canada) Corp.
5After her injury, the applicant was off work and in receipt of loss of earnings benefits from the WSIB until October 1, 2009, when she returned to work.
6According to the respondents, on October 28, 2009, Tinnerman Palnut Engineering Products (Canada) Corp. sold “substantially all of its assets” to A. Raymond Manufacturing Hamilton Inc., and that as a result, Tinnerman Palnut Engineering Products (Canada) Corp. “no longer carried on business in Ontario and ceased to employ the applicant.” The respondents say that after October 28, 2009, the applicant was employed by A. Raymond Manufacturing Hamilton Inc., and that she was also employed by A. Raymond Manufacturing Hamilton Inc. when her employment was terminated on September 23, 2010.
7In the Application, the applicant named a number of other corporations as respondents, based on the applicant’s understanding about the relationships between these various corporations.
8In her March 19, 2012 Reply to the Response, the applicant now agrees that the following corporate respondents should be removed:
Tinnerman Palnut Engineered Products Inc.
Tinnerman Palnut Inc.
A. Raymond et Cie
9In light of the applicant’s Reply, those three corporations are removed as respondents to this Application.
10The applicant does not consent to the removal of Tinnerman Palnut Engineered Products (Canada) Corp., which was the entity that employed her at the time of the work-related injury.
11The respondents have not asked that A. Raymond Manufacturing Hamilton Inc. be removed, and appear to agree that if the applicant could establish that the termination of her employment was discriminatory, A. Raymond Manufacturing Hamilton Inc. would be liable.
12In my view, at this point in the proceedings, it is not appropriate to dismiss the Application as against Tinnerman Palnut Engineered Products (Canada) Corp.
13The applicant alleges that she experienced discrimination during the period of her employment with Tinnerman Palnut Engineered Products (Canada) Corp. There is clearly a question of the relationship between Tinnerman Palnut Engineered Products (Canada) Corp. and A. Raymond Manufacturing Hamilton Inc. The question of whether a sale of assets extinguishes any rights an employee may have under the Code is a complex issue involving fact and law and is not something that is appropriately dealt with at this stage in the proceedings. As well, the respondents have not provided any documentation to prove that Tinnerman Palnut Engineered Products (Canada) Corp. in fact no longer exists.
Timeliness of the Application
14The Response also raises the question of whether any allegations concerning the applicant’s employment with Tinnerman Palnut Engineered Products (Canada) Corp. should be dismissed because they were not filed in accordance with section 34 of the Code, which provides:
- (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.
15The applicant’s allegations could constitute a series of incidents for the purpose of section 34(1)(b). How the interpretation of section 34(1)(b) applies when there is a sale of assets is another issue that potentially raises matters of fact and law and is not something that should be dealt with at this stage in the proceedings.
Personal respondents
16The Application named three personal respondents. The respondents ask that they be removed as respondents.
17All three of the respondents were involved in the decisions leading up to the termination of the applicant’s employment.
18The factors typically considered by the Tribunal when determining a request to remove a personal respondent are as follows:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
Persaud v. Toronto District School Board, 2008 HRTO 31
19In my view, in this case, the first three factors suggest that it is not appropriate to remove the personal respondents at this time. The respondents have clearly put into issue the questions of whether there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct, whether there is a corporate respondent who can assume liability and whether there is a corporate respondent that can respond to or remedy the alleged discrimination that the applicant alleges occurred during her employment with Tinnerman Palnut Engineered Products (Canada) Corp.
20I therefore conclude that it is not appropriate to remove the personal respondents at this time.
Deferral
21In the Response, the respondents asked the Tribunal to defer further consideration of the Application pending the conclusion of a proceeding at the WSIB. The Response indicates that the matter that is before the WSIB concerns whether the applicant’s employer at the time of the injury had re-employment obligations to the applicant under section 41 of the Workplace Safety and Insurance Act, 1997 (WSIA). The respondents included a decision from a Service Delivery officer of the WSIB, which concluded that the applicant was employed by Tinnerman Palnut Engineered Products (Canada) Corp. at the time of her injury and that the Board’s account for that company was closed effective October 28, 2009, and that, “as such, no re-employment obligation exists for A. Raymond Tinnerman in this case.”
22The Reply from the applicant indicates that she has considered filing an objection with the WSIB concerning this decision. She has filed a preliminary form but has not confirmed with the WSIB that she intends to pursue the objection.
23At present, it does not appear that there is a basis to defer further consideration of the Application to a proceeding before the WSIB because at this time, there does not appear to be a proceeding at the WSIB.
24Even if the applicant was pursuing the issue of whether there were re-employment obligations under the WSIA, it is not clear that a decision of the WSIB would substantially impact on any of the issues in the Application.
25A finding by the WSIB about whether there was a re-employment obligation under WSIA would not in itself resolve the question of whether the applicant experienced discrimination contrary to the Code during her employment, or whether the termination of her employment was discriminatory.
26I am therefore satisfied that it is not appropriate to defer the Application at this time.
27However, I note that an understanding of the status and history of the applicant’s claim with the WSIB is something that is likely relevant to the issues in the Application. The applicant is directed to provide a summary of the history of her WSIB claim and the current status of the claim.
Dated at Toronto, this 27th day of September, 2012.
”signed by”
Brian Cook
Vice-chair