Jensen v. Lekkas, 2013 HRTO 1266

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shirley Jensen

Applicant

-and-

Nick Lekkas and Heleni Lekkas

Respondents

INTERIM DECISION

Adjudicator: Eric Whist

Date: July 19, 2013

Citation: 2013 HRTO 1266

Indexed as: Jensen v. Lekkas

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The Application alleges the applicant was discriminated against while employed at Helen’s Family Restaurant including when her employment was terminated on April 3, 2011.

2In the Application the applicant identifies 2283172 Ontario Ltd. as the organizational respondent. She names Heleni Lekkas and Nick Lekkas as individual respondents.

3In her account of events that form part of the Application the applicant goes on to state:

“Helen’s Family Restaurant” is a business name of two employers, (1) Heleni (aka “Helen”) Lekkas, operating as a sole proprietorship, and (2) as a business name of 2283172 Ontario Ltd., which began April 28, 2011 and assumed all of the liabilities of Heleni Lekkas, operating as a sole proprietorship under the business name “Helen’s Family Restaurant”. Further, at all material times, until April 3, 2011, when the employment was terminated, Nick Lekkas held himself out to Ms. Jensen as her employer and signed the “Record of Employment”.

4On July 25, 2012 the Tribunal issued Notices of Application to the respondents. The respondents were advised that they must file Responses to the Application with the Tribunal by no later than August 29, 2012. The Notices of Application were sent by regular mail to the addresses of service provided by the applicant for the corporate respondent in Trenton Ontario and for the two personal respondents in London Ontario.

5On August 10, 2012 the Tribunal received a letter from an individual at the address of service provided by the applicant for the two personal respondents. In this letter the person indicates that although they share the same name as one of the personal respondents, the individual is not the person named in the Application nor has the other personal respondent ever resided there. The Tribunal’s correspondence to the corporate respondent in Trenton was not returned.

6In an Interim Decision dated September 17, 2012, 2012 HRTO 1754, the Tribunal directed the corporate respondent to file a Response within 14 days if it wished to participate in the Tribunal’s process and directed the applicant to provide the Tribunal with alternate contact information for the two personal respondents.

7The Tribunal’s Interim Decision package which was couriered to the corporate respondent at the previously provided Trenton address was returned on September 20, 2012, with the notation that it was a “bad address”.

8On December 11, 2012, the Tribunal issued a Case Assessment Direction in which it advised the applicant that it was unable to proceed with the Application given the problems with service and requested that the applicant provide accurate contact information for the respondents within 20 days. The Case Assessment Direction indicated that the Tribunal may dismiss an application if it is unable to contact the respondent(s).

9The applicant subsequently wrote to the Tribunal twice to ask for extensions of time in order to get accurate addresses for the respondents. These requests were granted. On March 13, 2013, the applicant provided a single address in Brantford Ontario for all three respondents. On April 3, 2013, the Tribunal sent Notices of Application to all three respondents at the address in Brantford.

10On May 7, 2013, Heleni Lekkas and Nick Lekkas filed their Response. In the Response Ms. Lekkas states that she and Mr. Lekkas purchased a restaurant on or about June 8, 2009, that the restaurant was run as a sole proprietorship and that neither Mr. Lekkas or herself had any involvement with the corporate respondent 2283172 Ontario Ltd. The Tribunal did not receive a Response from the corporate respondent.

11On June 13, 2013, the Tribunal wrote to the applicant to state that Ms. Lekkas and Mr. Lekkas took the position in their Response that they had no involvement or status with 2283172 Ontario Ltd., and asked the applicant to explain in her Reply why the Application should continue against 2283172 Ontario Ltd. The applicant has not filed a Reply or responded to the Tribunal’s inquiry.

DECISION

12The applicant has been unable to provide contact information for the organizational respondent. Based on the information before the Tribunal it therefore appears that the organizational respondent has not had notice of the Application. It would therefore be unfair for the Application to proceed against this named party. The applicant has had an extended period of time to provide accurate contact information. She had a further opportunity to provide submissions on why her Application against the organizational respondent should proceed in response to the Tribunal’s letter of June 13, 2013. Given these circumstances the Application will proceed at this point only in relation to the two named individual respondents.

13As the applicant and two individual respondents have indicated an interest in mediation the Tribunal will proceed to schedule a mediation for these parties.