Tombs v. 1776603 Ontario Inc., 2013 HRTO 1574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wendy Tombs

Applicant

-and-

1776603 Ontario Inc., David Hornstein and Karen Hambrock

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: September 19, 2013 Citation: 2013 HRTO 1574 Indexed as: Tombs v. 1776603 Ontario Inc.

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision removes a respondent and issues directions regarding the continuation of this Application.

BACKGROUND

2The Application arises out of the applicant’s employment at Holiday Inn Express/Kincardine. The Application alleges discrimination in employment on the basis of disability.

3In the Application, the applicant included a number of respondents, including an organizational respondent (originally identified as Intercontinental Hotel Groups and the owner of Holiday Inn Express Hotels) and individual respondents (identified as David Hornstein and Karen Hambrock). The applicant identified Mr. Hornstein as the franchisee owner of Holiday Inn Express, Kincardine, (Ont) Canada and Ms. Hambrock as the general manager of the franchised property.

4After several unsuccessful attempts to obtain clarification from the applicant as to which organizations and individuals the applicant was seeking to name, the Tribunal delivered the Application only to Intercontinental Hotel Groups.

5This organizational respondent filed a Request for Order During Proceeding requesting that it be removed as a party and the style of cause be amended to correct the respondent’s legal name to Holiday Hospitality Franchising, LLC (the “Request”). In the cover letter to its Request, Holiday Hospitality Franchising (“HHF”) stated that there does not appear to be any basis upon which the Tribunal determined that the named respondent was the only respondent that the applicant intended to name. In addition, the respondent noted that as a courtesy it has sent a copy of its Request to David Hornstein, 1776603 Ontario Inc., at the address provided in the Application.

6Initially, the applicant did not respond to the Request.

7On July 9, 2013, I issued a Case Assessment Direction seeking submissions from the applicant as to her intentions with respect to the Application and confirmation of which organizations and/or individuals she intended to name as respondents in the Application, along with their contact details.

8On July 19, 2013, the applicant responded consenting to the removal of HHF and identifying the same two individuals originally included as respondents in the Application (the contact details of Mr. Hornstein reflecting a numbered company, 1776603 Ontario Inc. Dynamic Hospitality).

9On July 22, 2013, the Tribunal directed the applicant to copy the respondents on her submissions and sought clarification as to whether the respondents were being named as organizations or personal respondents.

10On July 30, 2013, the applicant responded by filing a Response which clarified that she sought to add 1776603 Ontario Inc., David Hornstein and Karen Hambrock. Among other things, the applicant stated that her employment was with the 1776603 Ontario Inc.

11On August 14, 2013, counsel wrote to the Tribunal stating that he had been “consulted” by Mr. Hornstein, 1776603 Ontario Inc. and “on behalf of Karen Hambrock”. On August 30, 2013, this same counsel filed submissions on behalf of Mr. Hornstein and 1776603 Ontario Inc. In the submissions, the respondent objects to the inclusion of Mr. Hornstein and 1776603 Ontario Inc. and states that the proper respondent is a different numbered company and that Mr. Hornstein did not have any dealings directly with the applicant.

DECISION

12This Application is at an early stage. While the Application has been served on the respondent HHF, no substantive responses have been filed.

13There appears to be no dispute that HHF was named in error. Having regard to the material filed, including the consent of the applicant, HHF is removed as a party and the style of cause is amended accordingly.

14At this early stage, the Application will continue to be processed against those respondents (other than HHF) identified in the applicant’s correspondence of July 17, 2013 and July 30, 2013. It would appear that the applicant intended from the outset to proceed against the two individuals given their inclusion in the original Application. Further, the applicant has clarified that she wishes to proceed against her former employer, which the applicant identifies as 1776603 Ontario Inc.

15While I can appreciate that Mr. Hornstein and 1776603 Ontario Inc. dispute their inclusion and take the position that the proper respondent is a different numbered company not yet named, at this time, the respondents are required to file full Responses so that any issue with respect their inclusion as parties may be dealt with on the basis of a full record.

16In the circumstances, the respondents are directed to file responses within 35 days of the date of this Interim Decision. If any respondents have not received a copy of the Application, the respondents may request that the Registrar deliver a copy to them immediately.

17In any response, the respondents may identify any additional respondent that they believe should be named. Further, should any respondent take the position that he or she should not be included as a respondent, the respondent may file a Request for Order During Proceeding regarding the same. If the respondent wishes to refer to material already provided to the Tribunal in support of any request filed, the respondent may do so.

18At this time, there is ambiguity as to whether counsel for Mr. Hornstein and 1776603 Ontario Inc. also acts for Ms. Hambrock. Counsel is asked to confirm which respondents he acts for upon receipt of this Interim Decision. In the interim, a copy of this Interim Decision will be delivered directly to Ms. Hambrock at the contact details provided by the applicant.

DIRECTIONS

19The Tribunal directs:

• HHF is removed as a party and the style of cause is amended accordingly;
• Counsel for Mr. Hornstein and 1776603 Ontario Inc. shall confirm which respondents he acts for upon receipt of this Interim Decision; and
• The respondents shall file responses within 35 days of the date of this Interim Decision. If any of the respondents do not have a copy of the Application, upon request, the Registrar will provide a copy of the same.