Grzesiak v. 1263699 Ontario Limited (formerly DOT Benefits Corp.), 2013 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Grzesiak

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

1263699 Ontario Limited (formerly DOT Benefits Corp.) and Martin Shaw

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: January 2, 2013

Citation: 2013 HRTO 1

Indexed as: Grzesiak v. 1263699 Ontario Limited (formerly DOT Benefits Corp.)

WRITTEN SUBMISSIONS

Michael Grzesiak, Applicant

Toby Young, Counsel

1263699 Ontario Limited (formerly DOT Benefits Corp.) and Martin Shaw, Respondents

Barbara Miller, Counsel

Ontario Human Rights Commission

Anthony Griffin, Counsel

INTRODUCTION

1On October 29, 2008, the Tribunal issued a final Decision in respect of this Complaint. In it, the Tribunal found that the respondents had infringed certain of the complainant’s rights under the Code and ordered them to pay damages to the complainant, as well as pre- and post-judgment interest, among other things: 2008 HRTO 206.

2The purpose of this decision is to address the complainant’s request that the name of the corporate respondent be changed from “DOT Benefits Corp.” to “1263699 Ontario Limited” to reflect the fact that the corporate respondent changed its name in June 2008.

3For the reasons set out below, the complainant’s request is granted. The name of the corporate respondent in the Tribunal’s Decision in 2008 HRTO 206, issued October 29, 2008 and Reconsideration Decision 2009 HRTO 186, issued February 18, 2009, is corrected to read “1263699 Ontario Limited”. For clarity, the correction shall include the notation: “(formerly DOT Benefits Corp.)”.

BACKGROUND

4This Complaint was referred to the Tribunal by the Commission pursuant to section 36(1) of the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

5The hearing of the Complaint concluded in August 2007.

6On June 25, 2008, after the conclusion of the hearing before the Tribunal and before the Tribunal released its final Decision in respect of the Complaint, the corporate respondent changed its name from “DOT Benefits Corp.” to “1263699 Ontario Limited”. This is evident on the face of Articles of Amendment that were filed by the corporate respondent under the Business Corporations Act, R.S.O. 1990, c. B.16, changing its name to “1263699 Ontario Limited”, effective June 25, 2008; as well as a Corporation Profile Report from the Ministry of Government Services dated April 2012. It is worth noting that the June 2008 Articles of Amendment changing the corporate respondent’s name were signed by the personal respondent, Martin Shaw, in his capacity as President of the corporate respondent.

7There is no dispute that the corporate respondent advised neither the Tribunal nor the other parties to the proceeding that it had changed its name. Accordingly, when the Tribunal issued its final Decision in this matter on October 29, 2008, it continued to identify the corporate respondent as “DOT Benefits Corporation”.

8On November 28, 2008, the respondents filed a Request for Reconsideration of the Tribunal’s October 2008 decision, pursuant to s. 45.7 of the Code and the Tribunal’s Rules of Practice for Commission-referred Complaints. In their Request for Reconsideration, the respondents alleged that the Tribunal had made several errors of fact and law in its final Decision and sought to have the Complaint dismissed. Notably, the Request for Reconsideration filed by the respondents continued to identify the corporate respondent as “DOT Benefits Corp.”, notwithstanding the June 2008 name change. The Tribunal dismissed the respondents’ Request for Reconsideration on February 18, 2009: 2009 HRTO 186.

9On August 23, 2010, the complainant filed a Request for an Order during Proceedings (“the Request”) seeking to have the Tribunal correct the name of the corporate respondent from “DOT Benefits Corporation” to “DOT Benefits Corp.” I granted this request in an Interim Decision dated February 3, 2011: 2011 HRTO 245.

10In his Request, the complainant, who had since learned of the corporate respondent’s June 2008 name change, also sought to have the Tribunal’s October 2008 Orders against the corporate respondent made effective against “DOT Benefits Corp.” and “1263699 Ontario Limited” on a joint and several liability basis. I declined to grant that request in my February 2011 Interim Decision. However, I indicated that I would receive submissions from the complainant and/or the Commission with respect to whether the name of the corporate respondent ought to be corrected to “1263699 Ontario Limited”. In the alternative, I pointed out that the relief that the complainant was seeking might be available from the courts as part of any enforcement proceedings the complainant was undertaking.

11The issue with respect to whether the name of the corporate respondent in the Tribunal’s October 2008 Decision and Orders ought to be corrected was ultimately not determined by the Tribunal in 2011. This is because, on April 5, 2011, at the complainant’s request, I adjourned the Request for a period of one year and ordered that the Request would be deemed to have been abandoned if not reactivated within that time.

12On April 3, 2012, the complainant wrote to the Tribunal seeking to reactivate the Request. The complaint sent further written submissions with respect to the Request to the Tribunal on April 23, 2012. In those submissions, the complainant clarifies that he seeks to have the name of the corporate respondent changed to its “accurate, current name – 1263699 Ontario Limited”. The complainant submits that the Tribunal has the power to do this pursuant to s. 21.1 and/or s. 23 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which respectively permit the Tribunal to correct typographical or similar errors in its decisions and to make any order to prevent abuse of its processes. Alternatively, the complainant submits that the Tribunal has the power to grant his request as part of its power to permit any filing to be amended.

13The respondents oppose the complainant’s request that the name of the corporate respondent in the Tribunal’s October 2008 Decision and Orders be amended to “1263699 Ontario Limited.” While not disputing that the corporate respondent’s name was changed to 1263699 Ontario Limited in June 2008, the respondents submit that the Tribunal should dismiss the complainant’s request on the basis that it is out of time. Alternatively, the respondents submit that there is no authority for the Tribunal to grant the relief requested.

14Although the Commission has not made submissions in respect of this matter since the complainant sought to reactivate the Request in April 2012, it previously filed submissions supporting the complainant’s Request.

ANALYSIS AND DECISION

15I agree with the complainant that the name of the corporate respondent should be corrected to 1263699 Ontario Limited to reflect the corporate respondent’s legal name change in June 2008.

16Having considered the parties’ submissions, I am of the view that it is appropriate for the Tribunal to do this pursuant to s. 21.1 of the SPPA, which states:

A tribunal may at any time correct a typographical error, error of calculation or similar error made in its decision or order.

17The fact that the Tribunal’s October 2008 Decision and Orders identified the corporate respondent by the name that it had at the commencement of the proceedings before the Tribunal was not a typographical error or an error of calculation. I agree with the complainant, however, that it was a “similar” error and therefore the sort of error that the Tribunal may correct pursuant to s. 21.1 of the SPPA.

18In October 2008, a final Decision was issued in respect of this Complaint in which the Tribunal (through no fault of its own) erroneously identified the corporate respondent by the legal name that it had prior to June 2008, instead of its proper legal name at the time. This error was similar to a typographical error in the sense that it was technical or clerical in nature. That is, the only reason the Tribunal failed to identify the respondent by its correct legal name in its October 2008 Decision and Orders was because it had not been advised of the corporate respondent’s name change prior to its Decision being issued. In this regard, I note that, in proceedings before it, the Tribunal routinely grants requests to amend the names of corporate respondents to reflect their correct legal names: Erskine v. 510947 Ontario, 2011 HRTO 1972; Pilkey v. Guild Automotive Restorations Inc., 2012 HRTO 209; Ziemendorf v. Toronto Police Services Board, 2011 HRTO 947; Payette v. Robyn Guindon Pharmacy Ltd., 2012 HRTO 292; Smith v. Smurfit-Stone Container Canada, 2009 HRTO 471; Zimmer v. Cooper Standard Automotive Canada Limited, 2012 HRTO 1307. In my view, the mistaken reference to the corporate respondent by its former legal name in the Tribunal’s October 2008 Decision and Orders is an error that the Tribunal ought to correct pursuant to its power under s. 21.1 of the SPPA.

19In coming to this conclusion, I must reject the respondents’ argument that the complainant’s request that the October 2008 Decision and Orders be amended to accurately reflect the corporate respondent’s legal name ought to be dismissed as out of time.

20The respondents argue that the complainant had until April 5, 2012 to reactivate his Request that the Tribunal’s October 2008 Orders be made effective against DOT Benefits Corp. and 1263699 Ontario Limited on a joint and several liability basis. The respondents submit that the complainant did not do this. In particular, the respondents submit that, when the complainant sought, in his April 23, 2012 submissions, to have the name of the corporate respondent corrected to “1263699 Ontario Limited”, the applicant was not reactivating the Request that had been adjourned by the Tribunal in April 2011, but making an entirely new Request for an Order during Proceedings. The respondents submit that the complainant was not entitled to bring a new Request for an Order during Proceedings in April 2012 and that such request should be dismissed as untimely. Moreover, the respondents submit that, since the complainant did not properly reactivate his adjourned Request (i.e. to make the DOT Benefits Corp. and 1263699 Ontario Limited jointly and severally liable to the complainant) by April 5, 2012, that Request should be dismissed by the Tribunal as abandoned, in accordance with the Tribunal’s April 5, 2011 Case Assessment Direction.

21I do not agree that the complainant’s request that the name of the corporate respondent be amended to “1263699 Ontario Limited” was a new request that was made for the first time on April 23, 2012. In my view, the complainant’s request to have the Tribunal’s October 2008 Orders made effective as against 1263699 Ontario Limited was part and parcel of his original Request to have the Tribunal’s Orders made effective against DOT Benefits Corp. and 1263699 Ontario Limited on a joint and several liability basis. In essence, what the complainant has been seeking all along is clarification that “1263699 Ontario Limited” is liable to pay the complainant the amounts ordered as against “DOT Benefits Corp.” in the Tribunal’s October 2008 Decision. Indeed, it was in considering the complainant’s original Request that I invited submissions from the parties with respect to whether the name of the corporate respondent in the Tribunal’s Decision(s) and Orders ought to be corrected to 1263699 Ontario Limited. Moreover, I find that the complainant’s original Request was properly reactivated within the requisite time frame when the applicant wrote to the Tribunal and the other parties on April 3, 2012 to state that he wished to reactivate the Request. In my view, it was appropriate at that point for the applicant to seek to make submissions on the outstanding issue with respect to whether the name of the corporate respondent should be amended to reflect its June 2008 legal name change.

22In any event, even if the complainant’s request is untimely, it is still appropriate, in my view, for the reasons given above, for the Tribunal to exercise its power pursuant to s. 21.1 of the SPPA to correct the name of the corporate respondent in the Tribunal’s Decision(s) and Orders to reflect its proper legal name at the relevant time. Insofar as I have found it appropriate for the Tribunal to correct an error in its Decisions and Orders in this matter and insofar as the Tribunal is entitled, pursuant to s. 21.1 of the SPPA to exercise this power “at any time”, whether or not the complainant has made a timely request is of no import.

23In the alternative, quite apart from the above-noted statutory authority, in my view, the Tribunal is entitled to correct the name of the corporate respondent in its final decision in respect of this Complaint pursuant to its power to revisit its decisions in order to correct an error that was made in expressing the manifest intention of the Tribunal: Chandler v. Alberta association of architects, 1989 CanLII 41 (SCC), [1989] 2 SCR 848; Nova Scotia Government and General Employees Union v. Capital District Health Authority, 2006 NSCA 85.

24The manifest intention of the Tribunal in rendering its October 2008 decision was to find, among other things, that the corporate entity that had employed the complainant had infringed the complainant's rights under the Code and to order it to provide the complainant with certain remedies. However, before the Tribunal’s decision was issued, that corporate entity changed its name from “DOT Benefits Corp.” to “1263699 Ontario Limited.” By correcting the name of the corporate respondent to reflect its accurate legal name at the time the Tribunal’s decision was rendered, the Tribunal is merely correcting an error that was made in expressing its manifest intention in its October 29, 2008 decision, as it is entitled to do.

25In sum, I find it appropriate to correct the name of the corporate respondent to “1263699 Ontario Limited” pursuant to the Tribunal’s power under s. 21.1 of the SPPA to correct errors that are similar in nature to typographical errors or errors of calculation. In the alternative, I find it appropriate to correct the name of the corporate respondent to “1263699 Ontario Limited” pursuant to the Tribunal’s power to correct an error that was made in expressing the manifest intention in its October 29, 2008 decision and orders, as well as its reconsideration decision in this matter.

26In the circumstances, it is not necessary for me to consider the complainant’s alternative argument that the Tribunal ought to correct the name of the respondent pursuant to its power to make orders to prevent abuse of its processes and/or pursuant to its power to permit any filing before the Tribunal to be amended.

ORDER

27The Tribunal orders that the name of the corporate respondent in the Tribunal’s Decision in 2008 HRTO 206, issued October 29, 2008 and Reconsideration Decision 2009 HRTO 186, issued February 18, 2009, is corrected to read “1263699 Ontario Limited”. For clarity, the correction shall include the notation: “(formerly DOT Benefits Corp.)”.