J.D. v. The Ultimate Cut Unisex, 2013 HRTO 891

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

J.D. Applicant

-and-

The Ultimate Cut Unisex and Rocco Valentini Respondents

A N D B E T W E E N:

E.D. by her next friend M.D. Applicant

-and-

The Ultimate Cut Unisex and Rocco Valentini Respondents

A N D B E T W E E N:

Cheri Davies Applicant

-and-

The Ultimate Cut Unisex and Rocco Valentini Respondents

INTERIM DECISION

Adjudicator: Mary Truemner Date: May 23, 2013 Citation: 2013 HRTO 891 Indexed As: J.D. v. The Ultimate Cut Unisex

INTRODUCTION

1These Applications were originally filed by J.D. on May 5, 2011, by E.D on June 1, 2011 and by Cheri Davies on January 27, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and allege that the personal respondent, who the applicants understood to be the owner of the organizational respondent at the time they filed their Applications, sexually harassed the applicants and made sexual advances towards them during their employment in 2010 and 2011. In addition, the Application of Cheri Davies describes reprisal in the narrative, but the box “reprisal” was not checked off.

2The personal respondent completed and filed Responses on behalf of himself and the organizational respondent, denying the allegations in the Applications of E.D. and J.D., and noting that the organizational respondent is a sole proprietorship owned by him. The respondents did not, however, file a Response to Cheri Davies’ Application despite it having been sent to the address provided by the respondents in the Responses to the other two Applications.

3The applicants have recently retained counsel and discovered that the organizational respondent may no longer exist. Given that the respondents are no longer responding to correspondence sent to the address provided by the respondents in their Responses, the applicants provided three other addresses of businesses believed by the applicants to be operated by the respondents, and the Tribunal sent a Case Assessment Direction dated May 11, 2012 to those addresses, directing the respondents to file a Response to the Davies’ Application. The respondents did not comply, and the Tribunal issued another Case Assessment Direction on September 10, 2012, ordering the respondents to immediately forward their new contact information.

4To date, the respondents have not complied with the Tribunal’s directions, nor have they communicated with the applicants or the Tribunal subsequent to the filing of the Responses to J.D.’s and E.D.’s Applications. The Tribunal sent the Notice of Hearing to the respondents’ address as listed by them in their Responses. The Tribunal and the applicants also sent directions to addresses where the applicants understood the personal respondent more recently may be conducting business.

5When the respondents did not appear at the start time for the hearing on May 16, 2013, I stood the matter down, in the case that they were late. The respondents did not appear upon recommencing the hearing half an hour later. It is the responsibility of the respondents to ensure they inform the Tribunal of any change in contact information, but they have not. Therefore, the hearing proceeded without the presence of the respondents. The Tribunal considered and decided at the hearing some Requests for Orders During Proceedings which had been filed by the applicants prior to the hearing.

REQUEST TO AMEND THE APPLICATION OF CHERYL DAVIES

6Ms. Davies argued at the hearing that her Application should be amended to include a checked box in Section 5 for reprisal given that her narrative described reprisal. In the absence of any opposition, I granted the Request.

7Ms. Davies also argued at the hearing that Section 9 of her Application should be amended. She explained that she was self-represented at the time she prepared her Application, so she obtained the assistance of J.D. who sat with her at a computer, and J.D. mistakenly copied language from her own Section 9 of her Application to paste into Ms. Davies’. She believes that the proposed amendment as contained in Schedule B to her Request for Order During Proceedings is more personalized, and better describes how the events she describes in her Application affected her. In the absence of any opposition, I granted the Request.

8Ms. Davies is directed to file with the Tribunal a complete amended Application which includes the amendments I have granted.

REQUEST TO AMEND THE APPLICATION OF E.D.

9E.D. argued at the hearing that Section 9 of her Application should be amended. She explained that she thought that her sister, J.D., could represent her, and she allowed J.D. to draft and file her Application, not realizing that J.D. had used the exact wording from her own Application in Section 9 to complete E.D.’s Section 9.

10E.D., who is a minor, has since arranged for her father to be her litigation guardian, and has obtained counsel who alerted E.D. to the obvious drafting error in Section 9. She believes that the proposed amendment as contained in Schedule B to her Request for Order During Proceedings corrects the error and is accurate in actually describing how the events she describes in her Application affected her, not J.D. In the absence of any opposition, I granted the Request.

11E.D. by her next friend M.D. is directed to file with the Tribunal a complete amended Application which includes the amendment I have granted.

REQUEST TO AMEND NAME OF PERSONAL RESPONDENT

12The applicants requested that the name of the personal respondent be changed from Rocky Valentini to Rocco Valentini. They submitted that J.D.’s Record of Employment completed by Rocco Valentini listed “Rocco”, not “Rocky”, as an employer. They also submitted that a search for the organizational respondent with the Ministry of Consumer and Commercial Relations (“MCCR”) revealed that a partnership called “The Ultimate Cut Unisex” was registered for several years in the 1990’s, and the name used for Mr. Valentini was “Rocco”, not “Rocky”.

13It would appear that the applicants made an error in the name of the personal respondent, and that the legal name of the personal respondent is “Rocco”, not “Rocky”. On that basis, and in the absence of any opposition, I granted the request to change the name of the personal respondent to Rocco Valentini. The Style of Cause has been amended accordingly for all three of the Applications.

REQUEST TO AMEND NAME OF ORGANIZATIONAL RESPONDENT AND TO ADD PERSONAL RESPONDENT

14The applicants argue that Paul Portelli should also be a respondent to their allegations. They filed a Request for Order During Proceedings to add him as a personal respondent and to amend the name of the organizational respondent to “Rocco Valentini and Paul Portelli operating as The Ultimate Cut Unisex”. They allege that the organizational respondent is not a sole proprietorship as indicated in the Responses completed by Mr. Valentini. Instead they believe that it is a partnership between Mr. Valentini and Mr. Portelli given the inclusion of both names on the registrations of the organizational respondent as a partnership with the MCCR in the 1990’s. The applicants only discovered this upon the recent retention of counsel. They also point to J.D.’s Record of Employment completed by Mr. Valentini that lists as the employer, “Rocco Valentini, Paul Portelli”, and not “The Ultimate Cut Unisex” which they claim does not exist as a corporation given their counsel’s recent corporate search.

15If “The Ultimate Cut Unisex” is in fact a partnership, not a sole proprietorship, then the applicants may find that they can enforce through the courts an award of damages, should one be made by the Tribunal, against any partner, whether the partner’s name is included in the name of the organizational respondent or not. At the hearing, I cautioned that any partner being pursued for any remedy enforcement probably should have been served with the Applications, and have had an opportunity to participate in the Tribunal proceedings. At the hearing, I expressed my concern that only Mr. Valentini was served with documents in the proceedings, and that only he represented the organizational respondent, claiming he was the sole owner. I expressed my concern that the applicants believe that the partnership discontinued its registration with the MCCR in the late 1990’s, perhaps indicating that Mr. Valentini bought out Mr. Portelli. I explained that I am most concerned about the fact that Mr. Portelli may not be a partner, and may have no knowledge of the filing of the Applications well over one year ago.

16The applicants therefore requested an adjournment for the continuation of the hearing in order that they locate Mr. Portelli and attempt personal service. They noted that the MCCR listed the same home address for Mr. Portelli as the home address that appears in a recent Canada411 search for Mr. Portelli conducted by their counsel.

17I granted the adjournment, and directed the applicants to attempt personal service on Mr. Portelli of the following documents:

• The Applications and Amended Applications
• The Responses
• All Case Assessment Directions and Interim Decisions, including this Interim Decision
• All Requests for Orders During Proceedings
• The Notice of Hearing

18There was no discussion at the hearing with respect to the implications of the delay in delivering Applications to Mr. Portelli and the applicants’ request to add him as a personal respondent, but if the applicants choose to continue in their request to add him as a personal respondent, they must be prepared to address s.34(1)(a) of the Code.

NEXT STEPS

19E.D. by her next friend M.D. is directed to file a complete amended Application containing the granted amendments within 10 days.

20Cheri Davies is directed to file a complete amended Application containing the granted amendments within 10 days.

21With respect to their outstanding Requests to include Mr. Portelli, the applicants are directed to personally serve him, and to file an Affidavit of Personal Service or Evasion of Personal Service by June 30, 2013.

22In the meantime, the Tribunal will schedule 2 days for the continuation of the hearing.