Human Rights Tribunal of Ontario
B E T W E E N:
Ariyaratnam Ariyakuddy
Complainant
-and-
Collins & Aikman Automotive Canada Inc., Terry Merza, John DeSouza and Les Kelemen
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin Date: May 4, 2012 Citation: 2012 HRTO 886 Indexed as: Ariyakuddy v. Collins & Aikman Automotive Canada Inc.
APPEARANCES
Ariyaratnam Ariyakuddy, Complainant ) Simon M. Sabalinggan, Representative )
Collins & Aikman Automotive Canada Inc., ) Canada Inc., Terry Merza, John DeSouza ) No one appearing and Les Kelemen, Respondents )
1This is a complaint referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) on May 2, 2007, under the provisions of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in effect at the time. Subsequent to the referral, the corporate respondent became subject to proceedings under the Companies’ Creditors Arrangement Act, R.S.C. 1985. c. C-36, as amended (“CCAA”), and then became bankrupt. As a result of the foregoing, the complainant has indicated that the corporate respondent should be removed as a party. This Decision determines the status of the corporate respondent as a party and whether the complaint may continue against the three individual respondents.
BACKGROUND
2The original complaint is dated October 1, 2001, and alleges discrimination on the basis of “handicap” (now disability) and reprisal. The complaint arises out of the complainant’s employment with then Collins & Aikman Plastics in the period 2000 to 2001. The complainant states that he has a permanent disability and medical restrictions. Among other things, the complainant alleges that he was denied accommodation by being directed to perform work beyond his restrictions, was harassed and discriminated against in comments made about his disability, was denied a transfer because he was a worker who required accommodations, was paid less than he would have been because he was on modified duties and was threatened with suspension and termination as a reprisal.
3The original complaint was filed against the complainant’s employer and the named individual respondents, who were at the applicable time his supervisor (Mr. Merza), the health and safety representative (Mr. Kelemen), and manager of human resources (Mr. DeSouza).
4The complaint has had a difficult and lengthy procedural history since being referred to the Tribunal. The history has included the corporate respondent becoming subject to an order under the CCAA and eventually going bankrupt; difficulties in locating the individual respondents for purposes of service; and some delays in the parties providing positions or submissions on issues. While I do not intend to detail the entire history below, I will summarize some of the history that is relevant to the issues now before me.
5As indicated above, subsequent to the referral of the complaint, the corporate respondent became subject to an order under the CCAA. As a result, the corporate respondent took the position that the proceeding was stayed against it. By Interim Decision dated July 20, 2009, I ordered that the complaint was stayed against the corporate respondent subject to, among other things, the Commission and/or complainant seeking to lift the stay by September 15, 2009.
6The Commission and/or the complainant did not seek to lift the stay. On April 16, 2010, the corporate respondent advised the Tribunal that it had made a voluntary assignment into bankruptcy pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985. c. B-3 (the “BIA”). On June 23, 2010, the corporate respondent confirmed that it was now bankrupt. The corporate respondent took the position that the complainant’s claim against it was then stayed by virtue of section 69 of the BIA unless and until the complainant appeared before the Bankruptcy Court to request that the stay be lifted.
7By Case Assessment Direction dated August 25, 2010, I sought submissions from the parties on the continuation of the proceeding. Among other things, I specifically asked the complainant to address whether he wished to continue his complaint against any of the respondents, and if so, which respondents and on what basis. In addition, I asked the complainant to address how each respondent had received effective notice of the proceeding and for what alleged conduct each named respondent should be held personally and individually liable.
8With respect to notice, it had become apparent that two of the individual respondents may not have been receiving notice of the proceeding at least since November 2007. Mr. Kelemen never participated in the proceeding at the Tribunal and correspondence sent to him by the Tribunal was for the most part returned. Mr. DeSouza had participated in the initial conference call in 2007 through counsel (as the original counsel for the corporate respondent also acted for Messrs. DeSouza and Merza). However, as of November 2007, this counsel ceased acting and the new counsel for the corporate respondent advised that she did not act for the individuals. While Mr. Merza began participating without counsel, the respondent DeSouza did not. Correspondence addressed to DeSouza was also being returned to the Tribunal.
9Initially, in response to issue of notice, the Commission, who then had carriage of the file, undertook to take steps to provide contact information for the individual respondents. In addition, at the request of the complainant, I directed that the corporate respondent also take steps to provide the contact information it had on file as to the last known addresses of these respondents. The complainant himself unequivocally stated that he did not have the funding or resources to locate the respondents and thus made it clear at the time that he was not prepared to do anything in this regard.
10Notwithstanding the efforts of the Commission and corporate respondent to provide contact information for these two respondents, the issue of notice was not resolved insofar as, while the corporate respondent and the Commission provided what contact information they had for them, correspondence addressed to the respondents’ Kelemen and DeSouza continued to be returned to the Tribunal.
11In a letter dated September 6, 2010 (dated 2009 in error), the complainant provided submissions in response to the CAD dated August 2, 2010. The complainant stated that he had decided not to lift the stay and intended to proceed with his complaint against all three individual respondents. The complainant confirmed again that he did not have the resources to locate the individual respondents. He stated that the Commission had undertaken to use its resources to locate the addresses of the individual respondents and that counsel for the corporate respondent had also undertaken to review its files for the addresses and contact information. As indicated above, while these efforts produced contact information, the mail returned suggested that the addresses may not be current.
12On December 1, 2010, I issued a Case Assessment Direction confirming the receipt of the submissions but noting that the complainant had not provided submissions as to how each of the respondents had received effective notice and for what alleged conduct each named respondent should be held personally and individually liable. Among other things, I provided the complainant with a further opportunity to provide submissions.
13No written submissions were received. However, on February 4, 2011, the complainant contacted the Tribunal stating that he was no longer represented by counsel; that he had not received a copy of the Case Assessment Direction dated December 1, 2010; and that he wished to continue the complaint. A copy of the Case Assessment Direction of December 1, 2010 was mailed to the complainant at the new address provided by him.
14The complainant again did not provide submissions and by Case Assessment Direction dated June 30, 2011, I scheduled a one-hour conference call for the purpose of hearing submissions on the issues identified in the Case Assessment Directions of August 25, 2010 and December 1, 2010, along with providing additional directions regarding the call.
15By Interim Decision dated August 17, 2011, I allowed a request by the Commission to withdraw from the proceeding: 2011 HRTO 1542. The Commission’s request to withdraw was unopposed.
16On August 18, 2011, a conference call was held with the Complainant and his representative. No other parties attended (the Commission attended briefly but was excused given the Tribunal’s decision to grant its request to withdraw).
17At the hearing on August 18, 2011, the complainant’s representative asked for an adjournment on the basis that he had not received a copy of the Case Assessment Direction of June 30, 2011, nor had he had an opportunity to review the file. I granted an adjournment to September 16, 2011, along with additional directions regarding that conference call, which was confirmed by Case Assessment Direction dated August 18, 2011.
18On September 16, 2011, a conference call was held to address the issues set out in the CAD of August 18, 2011 and the earlier CAD’s referred to in that CAD. Only the complainant and his representative attended the conference call.
19During the conference call, the complainant initially took the position that he did not want to lift the stay against the corporate respondent but wanted the Tribunal to utilize its resources to investigate the existence of the corporate respondent and then if it was confirmed that the corporate respondent was not in business anymore, he would reconsider lifting the stay. However, the complainant subsequently confirmed orally and in writing that he did not wish to pursue the complaint against the corporate respondent and that he agreed that the corporate respondent should be removed as a party.
20During the conference call I heard oral submissions on how each of the respondents received effective notice of the proceeding and for what alleged conduct each named respondent should be held personally and individually liable. In addition to the submissions made in the conference call and the written submissions filed in advance of the conference call on September 16, 2011, the complainant sought an extension to file further written submissions in writing on three specific allegations which appeared to be new allegations not referenced in the complaint. I granted the request.
21By Case Assessment Direction dated September 19, 2011, I confirmed the complainant’s position on the corporate respondent and provided other directions to the complainant and individual respondents regarding the complainant’s request that the corporate respondent be removed as a party.
22The complainant filed additional submissions. I have considered all of the submissions filed in determining the issues below.
Removal of Corporate Respondent
23While not framed expressly as a request to withdraw, I view the complainant’s request to remove the corporate respondent as a request to withdraw. Based on the material on record, including the bankrupt status of the corporate respondent, the complainant’s submissions, and the absence of any opposition, the corporate respondent is removed as a party.
Should the Complaint Continue against the Individual Respondents?
24There are two separate issues to address in determining whether it is appropriate for the complaint to continue against the individual respondents: first, there is a question of whether or not the individual respondents have received effective notice; and second, there is a question of whether or not there are allegations against them for which they could be held liable.
Did the Respondents Merza, DeSouza and Kelemen Receive Notice?
25The Tribunal’s Rules of Practice, Effective January 31, 2008 include the following provisions regarding service of documents:
Service of Documents
- Documents may be served on a person in any of the following ways:
(a) by personal service;
(b) by regular or registered mail to the person’s last known address;
(c) by courier to the person’s last known address;
- The Tribunal may direct the Commission or another party to take steps to confirm that service has effectively been made on a person.
26In this case, the complainant’s representative argued that each of the respondents had received effective notice of the proceeding through service at their last known addresses. The complainant argued that the respondents had been served at the addresses provided by the Commission and that he believed that the respondents were deliberately not accepting the “letters” (presumably suggesting that that is the reason correspondence sent to the respondents was being returned). Notwithstanding the foregoing, the complainant’s representative conceded that the complainant had no knowledge that the respondents Kelemen and DeSouza resided at the addresses they were being served at nor did the complainant have any updated information for them.
27I am satisfied that the respondent Merza received notice of this proceeding. The respondent Merza provided me with his contact information in one of the early conference calls and subsequently participated in the proceeding until the middle of 2009. While he ceased participating at that time, with one exception of a couriered package, correspondence sent to him by the Tribunal has not been returned. I do not find the return of a single couriered package to be significant, particularly when the same package was mailed to him and was not returned.
28However, I am concerned that the respondents Kelemen and DeSouza have not received effective notice of the proceeding, although the factual circumstances related to each of them leads me to reach a different result as to the consequences of the notice problem.
29I will begin with summarizing the efforts to find and locate Mr. Kelemen.
30As indicated in paragraph 8 above, the respondent Kelemen has not participated in this proceeding since it was first referred to the Tribunal.
31In a conference call dated July 25, 2008, I directed the Commission, which had carriage of the file at the time, to take steps to ascertain contact information for both Mr. Kelemen and Mr. DeSouza. With respect to the respondent Kelemen, on July 31, 2008, the Commission identified the most recent address it had on file. In a letter dated December 4, 2008, the corporate respondent identified a different address which it indicated was the address contained in its personnel file when Mr. Kelemen last worked with the corporate respondent. In addition, the corporate respondent indicated that its former counsel used this address in May 2007 to send information to this respondent, although no information was provided as to whether it appeared that the mail was received or returned.
32With some exceptions, the correspondence sent to the respondent Kelemen by the Tribunal at both addresses by courier or mail have been returned to the Tribunal as not being able to be delivered (the language used varies from mailing to mailing). For example, the CAD of August 25, 2010 was sent to Kelemen at both addresses provided by the Commission and corporate respondent by Purolator and regular mail. The couriered CAD was unable to be delivered at either address and was returned; and the mailed copy sent to the address provided by the Commission was returned as well.
33In July 2011, the Commission served its disclosure package to the respondent Kelemen at the address provided by the corporate respondent as opposed to the address it previously provided to the Tribunal, which I presume indicates that the Commission accepted this address as the last known address (although notably it also reflects the uncertainty as to the proper address). During its brief attendance at the conference call on August 18, 2011, Commission counsel present indicated that the disclosure package couriered to the respondent Kelemen was returned as unclaimed.
34The complainant also appears to be using the address provided by the corporate respondent as reflected in their submissions of September 6, 2011. The complainant has not provided any information as to whether its correspondence has been returned.
35The Tribunal’s decision of August 17, 2011 was couriered to Kelemen at the address recently used by the Commission (i.e. the last known address provided by the corporate respondent) – it also was returned with a notation of “moved”.
36The most recent CAD of the Tribunal dated September 19, 2011 was mailed to the individual respondent Kelemen. To date, it has not been returned, although I am not prepared to infer that this means it has been received by Mr. Kelemen, particularly when other mailings have been returned. Further, I would assume that the return of mail may be somewhat dependent upon the recipient being prepared to take steps to return the mail.
37The facts concerning the efforts to locate and serve Mr. DeSouza are somewhat different.
38The respondent DeSouza was a participant in this proceeding through counsel in the period from the date of referral until November 2, 2007. On this date, the Tribunal received notice that the corporate respondent and respondents DeSouza and Merza had changed solicitors. Subsequently, the new counsel for the corporate respondent advised that she did not act for either individual respondent, which led to separate efforts to ascertain the contact information for the respondents DeSouza and Merza. Mr. Merza was able to be contacted and participated in the proceeding for a period of time. Mr. DeSouza was unable to be contacted and has not participated with or without counsel since his original counsel ceased representing him in November 2007.
39On July 31, 2008, the Commission, who had carriage of the file, provided what information it had regarding the address for Mr. DeSouza. The Commission provided an address but stated that other than this information, it was “unable to confirm whether this is the correct Mr. DeSouza”. In addition, on December 4, 2008, the corporate respondent provided two addresses for Mr. DeSouza; neither matched the Commission’s address. The corporate respondent identified an address from the original counsel’s file (as of May 22, 2007), which has since been used by the Tribunal and the parties (to the extent the addresses used are reflected on filings).
40With some exceptions, correspondence sent to Mr. DeSouza at this address has been returned. For example, the CAD of December 1, 2010, was sent to and returned by Canada Post; the notation on the envelope states, “not at this address – 4th return”. Similarly, the August 17, 2011 Interim Decision was sent by and returned from Canada Post “R.T.S.”; the same decision was sent and returned by courier.
41As with the respondent Kelemen, the CAD of September 19, 2011 was sent by mail to Mr. De Souza and not returned, although for similar reasons to those expressed above, I have difficulty inferring that this confirms that this is the correct address given the history of other returns.
42Based on the history of non-participation, conflicting information about the last known addresses and returned mailings, I am not satisfied that notice has been provided to the respondent Kelemen. Mr. Kelemen has never participated in this proceeding and mailed or couriered material sent to him has often been returned.
43While the Tribunal’s Rules do permit service to a party’s last known address, this is not a case where there is any clarity as to the last known address for Mr. Kelemen. The Commission, which originally had carriage of the file, produced an address for Mr. Kelemen which is different from that produced by the corporate respondent. In these circumstances, I do not find that service to the last known address is sufficient, particularly where service to the addresses provided have often resulted in correspondence being returned as outlined above. I note that in considering the reliability of these addresses, the complainant has stated that he has no knowledge that either Mr. Kelemen (or Mr. DeSouza) reside at the addresses at which they have been served.
44While the complainant now asserts in his submissions that both respondents are deliberately avoiding service, I note that this submission appears inconsistent with the position taken earlier in this matter. At no time did the complainant previously allege that the respondents were deliberately avoiding service. Instead, the complainant did not dispute that the contact information for the personal respondents may have been inaccurate, but did state that he was unable to do take steps to do anything as he did not have the resources to do so (a position reflected in his letter of September 6, 2010 which is mistakenly dated 2009) and that the Commission and corporate respondents had the responsibility in this regard. As outlined above, the Commission and corporate respondent made efforts to locate the contact information, but those efforts and the resulting attempts at service at those addresses do not satisfy me that they are valid.
45Having regard to all of the circumstances, I am therefore not satisfied that the respondent Mr. Kelemen has been given notice of the proceeding. Given the age of the complaint (relating to events from 2000-2001 and having been referred five years ago), I am satisfied that Mr. Kelemen would be prejudiced by the delay. In the circumstances, the complainant is not permitted to proceed with his allegations against Mr. Kelemen as I find that it would not be fair to permit a complaint to proceed against him for which he has not received notice.
46The complaint is therefore dismissed against the respondent Kelemen.
47I reach a different result regarding Mr. DeSouza. While I have similar concerns about the sufficiency of notice to Mr. DeSouza particularly since 2007, there is a critical difference in history cited above. Mr. DeSouza did appear to have notice of the proceeding in 2007 insofar as counsel on his behalf attended the Initial Conference Call, which is the call that initiated this proceeding at the Tribunal. Once a party has notice, that party has obligations to advise the Tribunal of changes in contact information under Rule 109, and if a party does not, the Tribunal may proceed in the absence of the party.
48However, I am not prepared to allow the complainant to proceed against Mr. DeSouza at this time. As indicated above, I have concerns about the sufficiency of notice. Further, in considering the issue of notice, I am cognizant that the scope of the case has changed considerably. What started as a complaint against a corporate respondent and several of its employees has evolved to a case where the complainant is seeking to proceed only against the individual respondents. In these circumstances, I do not find that I am satisfied that DeSouza has notice of the case that is now at the Tribunal.
49In the circumstances, I find that the complainant is required to personally serve Mr. DeSouza with notice of the proceeding by providing him with a copy of the complaint and a copy of this Interim Decision should he wish to continue the complaint against him and file proof of personal service (Form 1) within 30 days of the date of this Interim Decision. For clarity, service by any other means other than personal will not be sufficient.
50If the Tribunal does not receive the information referred to in paragraph 49 within 30 days, the complaint will be dismissed as abandoned.
51This is not a final decision about whether it is appropriate for the complaint to continue against Mr. DeSouza, including whether or not there is prejudice to him arising from the Tribunal continuing to hear the complaint at this time. Should Mr. DeSouza raise any such concerns they will be addressed at the appropriate time.
Are there Allegations that Support Individual Liability?
52In a number of cases, the Tribunal has stated that in certain circumstances, where a corporate respondent is removed, the application or complaint may continue against the personal or individual respondents. In particular, the Tribunal has stated that to the extent an applicant (or complainant) alleges a breach of the Code by the individual respondent, not as an agent of the organization respondent, but as against her or him as an individual, the applicant (or this case, complainant) should be able to proceed against the individual respondent. See, for example, Johnson v. Yorkview Lifecare, 2009 HRTO 1338; Rijal v. Distinctive Designs Furniture, 2009 HRTO 1337; and Okunbo v. Nadiscorp Logistics Group, 2010 HRTO 423.
53In this case, the complainant relied on this case law to support his position that he should be permitted to continue his complaint against all three individuals, including Mr. Merza. Given my conclusion above with respect to the respondent Kelemen, I do not find it necessary to address this issue as it pertains to him. In addition, given my direction regarding notice to Mr. DeSouza, I find it premature to address the issue as it pertains to him. However, I do find it appropriate to consider this issue as it pertains to the allegations against Mr. Merza as I am satisfied that he received notice of the proceeding.
54I begin with a more detailed review of the allegations against Mr. Merza.
55In the Complaint, the complainant references Mr. Merza twice. The complainant alleges that prior to January 2000, Mr. Merza took him to different locations within his division in an attempt to persuade him to perform regular work, contrary to his work accommodations; and further, on or about January 21, 2000, he was re-injured as a result of performing “regular work” as instructed by Mr. Merza. The complaint also reflects that the request came at the instruction of Mr. Kelemen, then environmental health & safety specialist.
56In his submissions dated September 6, 2011, the complainant expanded on the allegations against Mr. Merza outlining them as follows:
i. Mr. Merza was “allowed” by the other two individual respondents to exercise his powers to any extent to remove the complainant from permanent modified duties;
ii. Mr. Merza “constantly harassed, coerced, intimidated, made jokes and un-welcomed comments about complainant’s disability”;
iii. Mr. Merza instructed complainant to follow to all work stations prior to assigning the complainant a job;
iv. Mr. Merza showed remorse and admitted that his conduct was a result of orders passed to him;
v. Mr. Merza had admitted allegations “with either the Board or the Tribunal.”
57In his oral submissions, the complainant confirmed that to the extent Mr. Merza assigned him work, someone higher up was instructing Mr. Merza and that he was just following orders in this regard. Given the apparent expansion of the allegations by including the allegations in ii and v, I asked the complainant to provide the paragraph references for these allegations in the original complaint and if he sought to rely on any particulars of incidents not reflected in the complaint, any submissions as to why the Tribunal should permit him to rely on the same. The complainant was not able to identify where the additional allegations came from and asked for an opportunity to file submissions after the conference call. I granted the request.
58In his subsequent written submissions, the complainant stated that the allegation in paragraph ii was not from the complaint but he does recall that the allegation did occur “occasionally”. Beyond the general statement set out above, no particulars were provided of the precise allegations. With respect to paragraph v., the applicant stated that he was still trying to get details of it. The complainant states that he could have missed some incidents in the filing of the initial complaint and that he relies on the Tribunal to use its discretion to include or exclude any new submissions.
59The complainant did not file any additional submissions.
60I am not prepared to permit the complainant to expand upon the allegations against Mr. Merza. Given the age of the complaint, it is too late to add what is an entirely different claim as set out in paragraph ii. The substance of the original complaint as it related to Mr. Merza was limited to the assignment of work on the instructions of others and this new allegation relates to personal actions and comments, which while vague, are of a different character. As for paragraph v., the complainant has not provided any particulars of the same and I have no record of any admission being made in this proceeding
61I do not find that the remaining allegations against Mr. Merza are allegations that could potentially attract individual liability and a remedy. In essence, the complainant alleges that Mr. Merza assigned him work that was inconsistent with his restrictions although he did so on the orders of someone else. This is analogous to Mr. Merza being an agent or employee of the organizational respondent and would not, in my view, lead to a finding of individual liability or a remedy specific to Mr. Merza. As a result, I do not find it appropriate that the complainant be permitted to continue the complaint against Mr. Merza.
62The complainant is therefore dismissed against Mr. Merza.
Summary of Orders
63I order as follows:
i. The complaint is withdrawn against the corporate respondent;
ii. The complaint is dismissed against Les Kelemen and Terry Merza;
iii. The complainant is required to personally serve John DeSouza with notice of the proceeding by providing him with a copy of the complaint and a copy of this Interim Decision should he wish to continue the complaint against him and file proof of personal service (Form 1) within 30 days of the date of this Interim Decision. For clarity, service by any other means other than personal will not be sufficient.
64If Mr. DeSouza is personally served, he may contact the Registrar Transition for copies of the Case Assessment Directions and other correspondence issued in this file. The previous interim decisions can be accessed at www.canlii.ca.
65If the Tribunal does not receive the information referred to in paragraph 49 and the above order within 30 days, the complaint will be dismissed as abandoned.
Dated at Toronto, this 4th day of May, 2012.
“Signed by”
Kathleen Martin
Vice-chair```