HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Candace Drover
Applicant
-and-
Jellybean Imaging Inc., Cruysen Holdings Inc., and Image Digital Printing Ltd.
Respondents
INTERIM DECISION
Adjudicator: Alison Renton
Indexed as: Drover v. Jellybean Imaging Inc.
WRITTEN SUBMISSIONS
Candace Drover, Applicant
Jo-Ann Seamon, Counsel
Jellybean Imaging Inc., Cruysen Holdings Inc., Image Digital Printing Ltd., Respondents
Tony Vander Cruysen, Representative
IDP Group Inc.
Mike Dagenais, Representative
1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex (pregnancy) and family status. In the Application, the applicant identified both Jellybean Imaging Inc. (“Jellybean”) and The IDP Group as respondents. She alleges that she worked at Jellybean and was terminated during her pregnancy leave when Jellybean was purchased by The IDP Group and she, unlike other employees, was not retained.
2The respondents’ representative sent a covering letter when filing a joint Response. In it, Mr. Vander Cruysen noted that while the applicant had identified The IDP Group as a respondent, it was Image Digital Printing Ltd. that purchased the respondent Jellybean and the respondents would continue to use the name The IDP Group to “not further complicate this matter”.
3A mediation in this matter is scheduled for August 9, 2013, at 1:30 p.m.
4The applicant filed a Request for Order During Proceedings (“RFOP”) dated May 28, 2013 in which she seeks to amend the name of the respondent, The IDP Group, to Digital Printing Group, and add a new organization, IDP Group or IDP Group Inc.
5A Case Assessment Direction (“CAD”) was issued on June 28, 2013 declining to amend, at that time, the name of the respondents or add a new respondent. At paras. 9 to 13, the Tribunal stated:
As noted above, the respondents’ covering letter indicates that “Image Digital Printing Ltd.” purchased the respondent Jellybean Imaging Inc., rather than “The IDP Group”, which the applicant had named as a respondent. The respondents also submitted, in that covering letter, that “Jellybean Imaging Inc. was sold to Image Digital Printing Ltd.”. In light of the applicant’s RFOP, this difference in name may now be significant.
From reviewing the file as a whole, I note that attached to the Response was a letter dated December 30, 2012 from the law firm Thompson Dymond to Tony Vander Cruysen, the respondents’ representative. In that letter, it states that an asset sale took place between “Jellybean Imaging Inc.” to “Image Digital Printing Ltd.”. “Image Digital Printing Ltd.” is different from “Digital Printing Ltd.” to which the applicant now wants the respondent amended. This appears to confirm the position the respondents took in their covering letter when they filed the Response.
Furthermore, the respondent Jellybean’s name seems to have changed as well. The letter from Thompson Dymond identifies that “Jellybean Imaging Inc.” is now “Cruysen Holdings Inc.”. There may be some significance in these proceedings to this respondent’s name apparently being changed as well.
IDP Group/IDP Group Inc.
Finally, the Tribunal is unclear about the name of the new proposed respondent and whether it is “IDP Group” as indicated in section 3, or “IDP Group Inc.” as indicated in section 4 of the RFOP. The corporate search appears to have been based upon Digital Printing Ltd. rather than Image Digital Printing Ltd. and a copy of the corporate search was not filed with the RFOP. It may be that if the correct name of The IDP Group is really Image Digital Printing Ltd., then this may affect if there is a parent company and the name of that company.
It is also unclear whether a parent company needs to be added as a respondent. At this point, the request to add the parent company is based upon “The IDP Group” not being registered to any corporation, whereas the company name may, in fact, be Digital Printing Ltd.”.
6The Tribunal directed the applicant to file submissions addressing the following issues:
a. Whether she seeks to change the name of the respondent Jellybean and if so, to what?
b. Whether she seeks to change the name of the respondent The IDP Group to IDP Group (as indicated in section 3 of her RFOP), IDP Group Inc. (as indicated in section 4 of her RFOP), or Image Digital Printing Ltd. as indicated in the respondents’ letter they sent when filing their Response;
c. Further submissions as to why a parent company needs to be added as a respondent; and
d. It would be helpful for the applicant to file the records of the corporate searches that she conducted.
7The respondents and the proposed respondent were sent a copy of the CAD and given an opportunity to file submissions.
8The applicant, the respondents, and Mr. Dagenais all filed submissions which have been considered by the Tribunal.
the applicant’s submissions
9The applicant submits that the proper identification of the respondents should be Cruysen Holdings Inc., Image Digital Printing Ltd., and IDP Group Inc. She submits that Jellybean is only a business name registered in association with the corporation Image Digital Printing Ltd., the company that purchased Jellybean. Cruysen Holdings Inc. is now the name instead of Jellybean as indicated by the corporate filings.
10Further, the applicant seeks to add both the purchaser, Image Digital Printing Ltd., and its parent company, IDP Group Inc. She submits that the decisions about which employees would be offered positions was made either by the purchaser, its parent company, or both. The decision to hire employees of the vendor business means that liability under the Code could attach to either Image Digital Printing Ltd. or IDP Group Inc. She points out that throughout the Response, there is reference to “The IDP Group”, including a reference to Jellybean “knowing that it was The IDP Group’s right to choose whom to hire if any and would therefore be responsible for any monies paid out in lieu of notice”. The applicant submits that IDP Group Inc. is a registered corporation and the parent company of Image Digital Printing Ltd. In this regard, she attached the corporate searches of the companies as well as an article from the internet.
the respondents’ submissions
11The respondents submit that Jellybean no longer has a corporate identity as a result of a sale of assets to Image Digital Printing Ltd. Jellybean’s name has been registered in association with Image Digital Print Ltd.
12Cruysen Holdings Inc., the respondents submit, is a holding company that does not have any operations, activities or other active business.
13The respondents submit that IDP Group Inc. is not the parent company of Image Digital Printing Ltd. and there is no association between the two companies as noted in IDP Group Inc.’s communications which are described in more detail below. The respondents agree that “The IDP Group” is used in some of Image Digital Printing Ltd.’s materials for operational purposes; however, it has no association or business with IDP Group Inc.
14The respondents confirm, again, that “The IDP Group” was referred to in the Response because that was how the applicant referred to Image Digital Print Ltd. in her Application, as they had indicated in their covering letter to the Tribunal filing their joint Response. The respondents submit that it should have read Image Digital Printing Ltd. instead of The IDP Group.
IDP Group Inc.’s Submissions
15IDP Group Inc.’s submissions, in the form of a July 8, 2013 letter written by Mike Dagenais, who identifies himself as the owner of the company, to the Tribunal and the parties, was forwarded to the Tribunal by the respondents.
16In the letter, Mr. Dagenais writes that his company has “absolutely no affiliation with The IDP Group which is a printing company. My company is an installation and delivery company which deals with systems furniture. IDP is an acronym for Installations/Deliveries Plus”. The letter is written from a city some distance from where the other respondents are located.
law and analysis
17Rule 1.7(b) of the Tribunal’s Rules of Procedure allows the Tribunal to add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42, and Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5, two oft-quoted decisions of the Tribunal, the Tribunal explained the principles behind Rule 1.7(b) in the context of the unnecessary naming of corporate and personal respondents.
18This case is a different in that there appeared to be some confusion about the identity of the respondents when the Application was filed. It appears from the pleadings filed that the applicant was employed by Jellybean, which was owned by Mr. Vander Cruysen. While the applicant was on pregnancy leave, Jellybean, was sold to, through an asset sale or otherwise, Image Digital Printing Inc.
19The determination, at this stage, with respect to the identification of the respondents does not mean that the Application will be successful, or, if successful, that all of the respondents will be found to be liable. This Interim Decision is only about the identification of the respondents.
Jellybean
20With respect to Jellybean, this will continue to be named as a respondent. The applicant alleges in the Application that on November 30, 2012 she was told that Jellybean had been sold and that her employment would be terminated. The respondents confirm this date in their Response. In the documentation attached to the Response, the applicant’s Record of Employment is issued from Jellybean and dated November 29, 2012, and the lawyer’s letter identified the asset purchase agreement effective November 30, 2012. However, Jellybean’s corporate documentation, that the applicant filed with her submissions, shows that Jellybean was not registered with Digital Imaging Services until December 21, 2012 and that it shares the same address as Digital Imaging Services.
Cruysen Holdings Inc.
21Cruysen Holdings Inc. will also be added as a respondent. The lawyer’s letter written to Mr. Vander Cruysen, as filed by the respondents along with their Response, indicated that Jellybean, which was owned by Mr. Vander Cruysen, is “now Cruysen Holdings Inc.”. The corporate information filed by the applicant indicates that Cruysen Holdings Inc. is still an active company and Mr. Vander Cruysen is identified as its officer and director. The style of cause will also be named to show Crusyen Holdings Inc. as a respondent.
Digital Imaging Services
22The respondents appear to agree that Digital Imaging Services should have been identified rather than The IDP Group. This is clear even from the cover letter that they filed along with their joint Response. Further, the lawyer’s letter confirms that there was a transaction between Jellybean and Digital Imaging Services, and some of the terms of that sale, which is called an asset sale, are identified in the lawyer’s letter. Digital Imaging Services is named, on Jellybean’s corporate filings, as “Act. Carried On/Gen”. Accordingly, Digital Imaging Services shall be named as a respondent and the style of cause is amended accordingly.
IDP Group Inc./The IDP Group
23IDP Group Inc. will not be added as a respondent. I cannot see, from the corporate documentation filed by the applicant, that there is any relationship between IDP Group Inc. and Digital Imaging Services. In fact, IDP Group Inc.’s corporate filings show that its registered name is “IDP Group Inc./Groupe IDP Inc.” rather than “The IDP Group”. Further the two companies appear to operate in different cities and there are no shared officers or directors between them, according to the documentation filed by the applicant.
24With respect to the internet material filed by the applicant, this appears to be an article, dated December 19, 2012, from Paul Valdstyn, President of “The IDP Group”, announcing that “another merger” has occurred with Jellybean. It states “Jellybean Imaging will begin operating under The IDP Group and all business conducted moving forward will be done from IDP’s head office location in Oshawa”. While is does suggest that Jellybean is now part of “The IDP Group’s” “team of companies”, those other companies and their locations are not identified. The corporate filings of Digital Imaging Services identify Mr. Valdstyn as its officer and director. Accordingly, I cannot conclude, from the material that has been filed by the applicant, that “The IDP Group” referenced in this article means IDP Group Inc.
25Finally, there is Mr. Dagenais’ letter. It is written under the heading “IDP Group Inc./Group IDP Inc.”, from a city different from where Digital Imaging Services is located, and in which Mr. Dagenais identifies that his business is an installation and delivery company, not a printing company, and has no affiliation with Digital Imaging Services. The applicant did not respond to or take with Mr. Dagenais’ letter once it was filed with the Tribunal.
26With respect to “The IDP Group”, while this was used in the article, mentioned above, there is no corporate information filed about it. The applicant is not seeking to have it named as a respondent and accordingly it is removed as one of the respondents.
Mediation and Amended Response
27The mediation scheduled for August 9, 2013 will proceed as is currently scheduled.
28If the mediation is unsuccessful, and if the respondents want to file an amended Response with respect to the respondents as named in this Interim Decision, they are directed to do so by filing an amended Response with the Tribunal, copying the applicant, by August 24, 2013. Any amended Reply that the applicant wishes to file, in response to an amended Response, should be filed with the Tribunal by September 9, 2013, copying the respondents.
order
29The Tribunal orders the following:
The mediation scheduled for August 9, 2013 shall continue as is scheduled;
The respondent Jellybean shall continue to be named as a respondent;
Cruysen Holdings Inc. and Image Digital Printing Ltd. shall be added as respondents;
The IDP Ltd. shall be removed as a respondent;
IDP Group Inc. shall not be added as a respondent;
The respondents are directed to file any amended Response with the Tribunal, copying the applicant, by August 24, 2013;
The applicant is directed to file any amended Reply with the Tribunal, copying the respondents, by September 9, 2013.
30I am not seized with this matter.
Dated at Toronto, this 1st day of August, 2013.
“signed by”
Alison Renton
Vice-chair