HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tammy Pelletier

Applicant

-and-

1216818 Ontario Inc. o/a Andy Myers Lodge, 1894773 Ontario Inc. o/a Andy Myers Lodge and Julien Kalka

Respondents

RECONSIDERATION DECISION

Adjudicator: David Muir

Decision Date: October 28, 2015

Citation: 2015 HRTO 1441

Indexed as: Pelletier v. 1894773 Ontario Inc. (Andy Myers Lodge)

1The applicant filed this Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of disability.

2In 2014 HRTO 1633 issued on November 6, 2014, the Application was allowed and damages were awarded in the following Orders:

(i) The respondents will pay to the applicant the amount of $17,955 with pre-judgment interest payable from May 1, 2014 less any amounts required by law to be deducted from employment income.

(ii) The respondents will issue, within 30 days of this Decision, a revised Record of Employment reflecting the fact that the applicant should have returned to work on September 11, 2013 and would have been employed until November 15, 2013.

(iii) The respondents will pay to the applicant the sum of $12,500 inclusive of interest for non-pecuniary losses arising from the violations of her rights under the Code; and

(iv) The applicant is entitled to post judgement interest in accordance with the Courts of Justice Act on any amounts awarded to the applicant and still owing to the applicant 30 days after the date of this Decision.

3The respondents identified in the original Notice of Application were 1216818 Ontario Inc. o/a Andy Myers Lodge and Julien Kalka. On December 3, 2014, the respondents filed a Request for Reconsideration (“Form 20”). As set out in greater detail below, they raise challenges relating to the adequacy of notice in this proceeding and the proper identification of the corporate respondent. At the direction of the Tribunal the respondents provided an affidavit in support of their Request and the applicant indicated that she wished to cross-examine the personal respondent on his affidavit. Accordingly, a hearing was held in Thunder Bay on July 8, 2015 for the purposes of cross-examination of the personal respondent. Further to a request, the respondents were granted leave to call further evidence with respect to the reliability of mail service in the area. Following the hearing written submissions were made on the legal effect of the amalgamation to two corporations both of which employed the applicant at different times.

4The applicant also filed a Request for Order during Proceeding seeking to add one of these corporations as an organizational respondent, namely 1894773 Ontario Inc. o/a Andy Myers Lodge.

5The originally identified organizational respondent is Ontario numbered company, 1216818 Ontario Inc., which until April 2013 operated the business Andy Myers Lodge. The personal respondent describes himself as the owner of the business as of April 2013. Although there is not much evidence on this point, the personal respondent testified that the old corporation, 1216818 Ontario Inc., (“old corp”) was amalgamted with a new corporation, 1894773 Ontario Inc., (“new corp”) which he (and others) own and which continues to operate the business both previously and currently known as Andy Myers Lodge.

6There is no dispute that the applicant was an employee of both old corp and new corp and was employed by new corp when her employment in this business ended.

The Request for Reconsideration

7The Request for Reconsideration as it relates to the personal respondent is denied.

8Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal’s Rules.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

[9] The Tribunal has issued Rules governing such requests, as well as a Practice Direction, to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008). Most relevant to this Decision is Rule 26 which states:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision

26.5. A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

10The Tribunal’s Practice Direction on Reconsideration includes the following statements:

Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the HRTO. Reconsideration is not an appeal or an opportunity for a party to change the way it presented its case.

11As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

12In their Request for Reconsideration the respondents make the following arguments:

a. That the Tribunal failed to provide the respondents with “sufficient notice of the proceeding”;

b. That the Tribunal failed to provide the respondents with sufficient notice of the purpose of the hearing held on October 17, 2014;

c. That the Tribunal failed to properly identify the former employer of the applicant.

13The respondents also argue that exceptional factors exist which outweigh the importance of the finality of Tribunal decisions and that the Decision is in conflict with established Tribunal procedure and jurisprudence.

14The primary issue in this reconsideration request is the effect of Rule 26.5(b) of the Tribunal’ Rules of Procedure which provides as follows:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

15In my view the central issue in this Request is whether the personal respondent received adequate notice of this proceeding prior to the Tribunal’s Interim Decision 2014 HRTO 861 issued on June 11, 2014. At this point I leave for later consideration the issue of the legal effect of the amalgamation of old corp with new corp and its effect on the notice issues.

16In the Interim Decision the Tribunal found that the respondents, although given notice of the proceeding had not responded and directed as follows:

It appears that the respondents refuse, or have chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal will proceed without the participation of the respondents and deems the respondents to have waived their right to notice and to participate pursuant to Rules 5.5(b) and (c) and further deems the respondents to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

17For the reasons below, I am not satisfied that the personal respondent, the owner of the business, did not receive notice of this proceeding and consequently there is no basis to revisit the Interim Decision as against him. As a consequence, any alleged defect in any subsequent notice issued by the Tribunal does not provide a basis to reconsider the final decision with respect to the personal respondent. I also find, although it is not necessary to do so, that the personal respondent acted with complete disregard or wilful blindness to the fact that there was a proceeding against him and his business and that he failed to take any reasonable steps to participate in the proceeding such that there would be no basis to re-open this case for a new hearing.

18I also find for reasons set out below that by its principal, the personal respondent, new corp was made aware of this proceeding and chose not to participate. I also find that it would be appropriate to add new corp to this proceeding.

19Most of the material facts in this case are not in dispute.

1216818 Ont Inc. o/a Andy Myers Lodge 1 Myers Road South 1802 durance, Box 58 Vermilion Bay, Ontario P0V 2V0

Julien Kalka 684 McGogy Road Box 1, Site 302, R R # 3 Dryden, Ontario P8N 3G2

20Prior to the Interim Decision being issued the Tribunal had attempted to communicate with the respondents using the following contact information, as provided by the applicant:

21The address for the personal respondent is accurate. The address for the organizational respondent is largely accurate but the respondents questioned the reference in it to “1802 durance”. The applicant entered a Business Names Report issued by the Ontario Ministry of Government Services for Andy Myers Lodge which included “1802 DURANCE” as a business address with the mailing address of Box 58 Vermilion Bay P0V 2V0. It appears that the references to Myers Road and Durance (Rd.) are references to the physical location of Andy Myers Lodge, while Box 58 correctly identifies the mailing address for Andy Myers Lodge. I am not persuaded that the inclusion of this additional information – particularly given it appears to identify the actual location of the lodge itself - provides a basis to conclude this mail went astray.

22The Application was delivered to the respondents at these addresses on April 9, 2014, by regular mail.

23On May 20, 2015 the Tribunal sent a follow up No Response to Notice of Application letter by mail and courier to the respondents at the addresses above. This correspondence was also sent the organizational respondent by email to info@andymyerslodge.com.

24The Interim Decision was sent to the respondents at both addresses by regular mail on June 11, 2014.

25None of this correspondence was returned to the Tribunal as undeliverable or for any other reason.

26Subsequent to the Interim Decision the following materials were sent to the respondents by regular mail. These materials were sent to the respondents at both addresses above.

a. A Case Assessment Direction issued on June 12, 2014.

b. A Case Assessment Direction issued on July 8, 2014.

27None of this correspondence was returned to the Tribunal as undeliverable or for any other reason.

28A Notice of Hearing was sent to the parties including the respondents at the addresses above on August 11, 2014. The personal respondent did not dispute that he received the copy of the Notice of Hearing sent to him in his capacity as personal respondent at the McGogy Road address, above. He disputes that he received a copy of the Notice of Hearing sent to him in his capacity as principle for the organizational respondent at the corporate address, above. Although the personal respondent testified that he did not receive the Notice sent to the address of the organizational respondent it was not returned to the Tribunal. I also note that while copies of the Notice of Hearing were mailed separately to the applicant, to the personal respondent (i.e. Julien Kalka) and to Andy Myers Lodge, each of these copies is identical and each copy clearly identifies three parties: “Tammy Pelletier”, “Julien Kalka” and “Andy Myers Lodge”.

29The personal respondent testified that he did not read the Notice carefully and took no steps to inquire further about it. He also agreed that he did not see the reference on the front page of the Notice to the Case Assessment Direction (“CAD”) issued on July 8, 2014 which set out in detail the nature of the proceeding and the issues to be addressed. This CAD would have also informed the personal respondent of the material contents of the Interim Decision.

30The personal respondent testified that he was not particularly concerned about the hearing for a number of reasons:

a. He believed that because the Notice identified the prior employer of the applicant the proceeding was of little consequence for him and his business; and

b. He believed that the Notice was in relation to an Order to Pay issued by the Ministry of Labour in July 2014 and because the amount in question was a little more than $1,000 he was content that this be paid.

31The personal respondent had no explanation for confusing an Order to Pay issued by the Ministry of Labour with a Notice with respect to a hearing issued by the Social Justice Tribunals of Ontario which included the prominent statement: “A hearing before the Human Rights Tribunal of Ontario has been scheduled by conference call for: Date: October 17, 2014 Time: 09:30am to 11:30am” other than he did not read documentation from government agencies very carefully.

32The respondent also testified that when he saw correspondence with what he understood to be the old corporate number on it he would give it to the former owner of the business who he had employed as a guide. This individual, although still employed by the respondents, was not called to give evidence.

33The personal respondent testified that he did try to call the Tribunal on October 14, 2014. He testified that he did so using his cell phone from a boat in the middle of the lake. He acknowledged that cell phone service was spotty in the middle of the lake. He acknowledged that he did not attempt to contact the Tribunal using his land line.

34The personal respondent also testified that he attempted to call in to the hearing on October 17, 2014 again from a boat in the middle of the lake. He testified that he was unable to connect to the hearing.

35The personal respondent and new corp also appear to have failed to respond to requests for information from the Ministry of Labour. In her Reasons for Decision issued on June 17, 2014, the Employment Standards Officer noted the following:

The Employer had been issued a Demand for Records on May 21, 2014 by verifiable mail with a required response date of May 30, 2014. The Canada Post Tracking System confirms there had been an attempted delivery on May 22, 2014 and a final notice left for the Employer on May 27, 2014. To date, there has been no further response from the Employer. A Demand for payment letter was issued to the Employer on June 4, 2014 by verifiable mail with a required response date of June 16, 2014. The Canada Post Tracking System confirms there was an attempted delivery on June 5, 2014. To date there has been no further response from the Employer.

36The respondents also led the evidence of two witnesses who live in the same area as the personal respondent. In this area there is no home delivery of mail, instead, mail is received at community mail boxes. They each gave evidence that mail sometimes get misdirected in that they receive mail intended for other persons. They both testified that when they get misdirected mail for someone that they do not know they return it to the post office in a slot in the community mailbox intended for that purpose. One witness testified that she received several pieces of mail from the Family Responsibility Office intended for her brother-in-law. The other witness testified that over eight years of residence she would have received a dozen or so pieces of misdirected mail which she returned to the post office. Both witnesses denied ever experiencing negative consequences due to failed mail delivery such as having an important utility cut off because bills were not paid.

Analysis

37I am not satisfied that through no fault of his own the personal respondent did not receive Notice of this proceeding. I have come to this conclusion for the following reasons.

a. Prior to the release of the Interim Decision the Tribunal made a total of seven attempts to deliver the Application to the respondents – four by regular mail, two by courier and one by email. None of the paper form packages were returned to the Tribunal and there is no indication that the email would not have been received.

b. I have also considered that including the Interim Decision, six further packages were sent to the respondents by regular mail prior to the Notice of Hearing being issued. None of these packages were returned to the Tribunal.

c. The personal responded conceded that he did not pay much attention to mailings from government agencies and further indicated that he did not believe that he or his business were liable because of what he believed was the incorrect identification of the organizational respondent. I find that the packages that were received were ignored.

d. I have also considered that the respondent and new corp ignored the requests for information from the Ministry of Labour. This is consistent with the personal respondent’s approach to mailing from government agencies – he didn’t want to know and so he did not pay any attention to them. I note in this regard that despite his apparent failure to respond to the requests for information, the personal respondent did receive the June 17, 2014 Decision of the Employment Standards Officer and relies on his knowledge of the Order to Pay to explain why he might have been confused about the nature of this proceeding.

e. The personal respondent also conceded that he received the actual Notice of Hearing, but did not pay enough attention to read who had issued it. He also conceded that he knew when the hearing was but the only attempt he made to participate was to call from the middle of a lake where reception was poor.

38I also considered the evidence of the respondent’s witnesses that sometimes they received mail intended for other community members. However, in light of the further evidence that there was a system in place (the community mailbox) for correcting misdirected mail and none of the witnesses testified to having missed important mail (the type of mail they might have realistically been aware of missing), I do not find this evidence provides a convincing basis in support of the respondent’s position that he did not receive the bulk of correspondence delivered by the Tribunal.

39The question I am left with is whether, through no fault of his own, the personal respondent did not receive notice of the proceeding generally or the hearing specifically. In total 13 pieces of correspondence were delivered to the respondents prior to the Notice of Hearing, the one document the personal respondent concedes he received. Seven of these were delivered prior to the Interim Decision that found both respondents in default and no longer entitled to further notice (although, in fact, notice continued to be provided).

40I find that it is more likely than not that the personal respondent was in receipt of at least one of the seven pieces of correspondence sent to the two address on April 9 and May 20, 2014 prior to the release of the Interim Decision, any one of which would have been sufficient to trigger notice of the proceeding.

41Accordingly I find that the personal respondent did receive notice of the proceeding and chose not to inquire into the matter and respond to the Application as he was required to do. I find therefore that it cannot be said that through no fault of his own he did not receive notice of the proceeding and consequently there is no basis to reconsider the Interim Decision.

42The Tribunal made the following determinations in the Interim Decision:

It appears that the respondents refuse, or have chosen not to participate in these proceedings, notwithstanding notice of the implications of Rule 5.5. In the circumstances, the Tribunal will proceed without the participation of the respondents and deems the respondents to have waived their right to notice and to participate pursuant to Rules 5.5(b) and (c) and further deems the respondents to have accepted all of the allegations set out in the Application pursuant to Rule 5.5(a).

43Assuming without deciding that there is any remaining discretion to reconsider the Decision because of alleged defects in Notice subsequent to the release of the Interim Decision the Request would also be denied.

44As indicated I am satisfied that the personal respondent received Notice of the Application. Even if I were to accept his evidence that he did not receive the Interim Decision or the two CADs issued on June 12 and July 8, 2014, he did receive the Notice of Hearing which was issued on August 11, 2014 and yet took no steps to inform himself about what was at stake in the proceeding.

45As previously noted he admits he did not read the Notice of Hearing and did not note the reference, in plain view on the front page of the Notice, to my CAD of July 8, 2014 which set out in detail the nature of the proceeding. After describing the procedural history of the Application including the import of the Interim Decision I described the issues in the Application as follows:

The issues in the Application are as follows:

a. The applicant claims that the respondents failed to accommodate her disability related needs while on a medical leave by failing to determine whether or not there were accommodations that could be made in the workplace which would allow her to return to work, and

b. That when the applicant was determined to be have achieved maximum medical recovery by the WSIB and sought to return to work the respondent failed to do so.

c. The applicant seeks a number of remedies for these alleged violation[s] of the Code in the form of lost wages and general damages.

46The CAD also described the next steps in the proceeding as follows:

The applicant advised that she preferred a telephone hearing. She advised that she intended to call no witnesses other than herself and that the allegations in the Application constitute the substance of her claim. In the circumstances I find that it is appropriate this hearing be conducted by telephone conference call.

The Tribunal makes the following Directions:

a. The applicant will file any further documents she intends to rely on within 7 days of the date of this Direction;

b. The applicant will file a one page summary of her remedial requests including a calculation of any monetary remedy she is seeking;

c. The Registrar will schedule a two hour telephone conference call hearing to hear the applicant’s evidence and submissions in this case.

47Instead of reading the Notice which would have alerted the personal respondent to the fact that prior directions had been made the personal respondent did nothing until October 14, 2014 when he claims to have attempted to contact the Tribunal by cell phone from his boat in the middle of the lake.

48Assuming that these calls were made, in my view it is impossible to say that the personal respondent through no fault of his own did not receive notice of the hearing. The respondents argue that the Notice of hearing was defective because it did not comply with the requirement of section 6(3) of the Statutory Powers Procedure Act, R.S.O 1990, c. S.22 which requires that the notice of hearing shall include a statement of the time, place and purpose of the hearing.

49In my view the notice in this case complies with this provision in that it referred the parties to my CAD of July 8, 2014. However I also note that the personal respondent did not read the Notice carefully. He was not misdirected by the Notice but by the fact that he chose not to read it carefully and made incorrect assumptions about what it might relate to. To the extent he held certain incorrect beliefs about the consequences for him of this proceeding these are entirely his own fault and arise because he took no steps whatever to inform himself of the potential consequences of this proceeding for him and his business. The general concept that parties must exercise at least some minimal due diligence is not unique to respondents in the Tribunal process. In this regard I observe that the Tribunal has held repeatedly that applicants are required to act with all due diligence in filing their Applications within the statutory time limit prescribed by section 34(1) of the Code. See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241. I see no reason why, in considering whether or not to exercise a discretion to reconsider a final Decision made after a failure to respond and consequent default ruling, that the respondent display at least some minimal level of diligence in informing themselves of the nature of the proceeding and taking steps to participate. None of that occurred in this case, the personal respondent, taking desultory steps at best to find out what was going on this case. In the end it was only after receiving the Decision, which he did receive, that he became interested in this proceeding.

50For these reasons the Request for Reconsideration is denied.

The Applicant’s Request

51The applicant seeks to add new corp as a party. The respondents oppose the Request.

52It is not disputed that the applicant was employed by old corp. and then by new corp. It is also not disputed that old corp was amalgamated with new corp. it is not disputed that old corp. and new corp both carried on the business known as Andy Myers Lodge which employed the applicant. All of the events giving rise to the Application took place after the creation of new corp. and the amalgamation of old corp. with it. The personal respondent described himself as the owner of new corp and the business which continued to carry on business as Andy Myers Lodge. It also follows from my conclusions above that the personal respondent and principal or directing mind of new corp had notice of this proceeding and the hearing.

53The parties arguments revolved around the legal effects of s. 179 of Business Corporations Act, R.S.O. 1990 . B.16 (the “BCA”). I agree with the respondents that the BCA does not much assist the applicant in the circumstances because the question is not whether new corp. is liable for the actions of old corp. but whether new corp. is a party to this proceeding. Old corp. had ceased to exist and all of its rights, responsibilities, assets and liabilities, etc. were assumed by new corp. before the events giving rise to this Application.

54However in my view it would be most fair, just and expeditious to add new corp to the Application as a respondent. The applicant’s Request seeks to clarify the proper name of the organizational respondent which would not have been necessary had the respondents filed their Response as required. It seems to me too technical by half to pretend in these circumstances that there is anything more than a technical deficiency in the applicant’s naming of the proper respondents. If the issue had arisen at any moment prior to the release of my Final Decision this defect would, in the circumstances, have been easily corrected.

55In coming to this conclusion I have considered all of the circumstances including that the personal respondent received notice of the proceeding and hearing and that he is the owner of the business. I have also considered the fact that the business style and indeed its operating name never changed such that the applicant would have had a limited reason to enquire about the precise legal identity of her employer, Andy Myers Lodge and Julien Kalka. I have also considered the fact that the new corp does not assert that there would be any prejudice to it in being named as a respondent and added as a party. New corp, as indicated, cannot say in light of my conclusion above that it was not made aware of this proceeding. I find that new corp had effective notice throughout, minimally through notice to Julien Kalka. It chose, by the actions of its principal, the personal respondent, to not respond to the Application relying on the mistaken belief of the personal respondent that his company was insulated from liability because the applicant had identified the incorrect numbered company. In my view it would be neither fair nor just to allow a party to rely on such a technical approach and defeat the purposes of these proceedings by deliberately not filing a Response or otherwise participating in the proceeding.

56Having come to these conclusions I note that the Court of Appeal in Spirito Estate v. Trillium Health Centre, 2008 ONCA 762 when considering the effect of a limitation period where the defendants were not correctly identified until after the expiry of the limitation period offered the following:

In Dukoff et al. v. Toronto General Hospital et al. (1986), 1986 CanLII 2648 (ON SC), 54 O.R. (2d) 58 (H.C.J.), Saunders J. noted the practice, adopted in this case, of using fictitious names where the identity of the parties are unknown. If it was a case of misnomer, the statement of claim could be corrected by replacing the fictitious name (John Doe in that case) for the correct name, even though the correction was sought after expiry of the limitation period. He adopted the following test from Davies v. Elsby Brothers, Ltd., [1960] 3 All E.R. 672 (C.A.), at p. 676:

The test must be: How would a reasonable person receiving the document take it? If, in all the circumstances of the case and looking at the document as a whole, he would say to himself: “Of course it must mean me, but they have got my name wrong”. Then there is a case of mere misnomer. If, on the other hand, he would say: “I cannot tell from the document itself whether they mean me or not and I shall have to make inquiries”, then it seems to me that one is getting beyond the realm of misnomer.

57In my view the principal enunciated in this case are directly applicable here. Did new corp by its principal the personal respondent after having received the Notice of Application and all of the documents sent to it above, not have reason to enquire and respond if only to say - you have identified the wrong corporate entity. In my view it would be manifestly unjust for the personal respondent and his corporate vehicle to benefit from their own willful disregard of this proceeding.

58For these reasons I find that new corp is properly added to this proceeding and the style of cause is amended accordingly.

59I would also dismiss the Request for Reconsideration filed by new corp for all of the reasons set out above.

Orders

60The Tribunal makes the following Orders:

a. The respondents’ Request for Reconsideration is denied for the reasons set out above.

b. The Request of the applicant is granted, 1894773 Ontario Inc. o/a Andy Myers Lodge is added as an additional respondent, and the style of cause amended accordingly.