Tombs v. 1303939 Ontario Ltd., 2015 HRTO 50

Human Rights Tribunal of Ontario

Between: Wendy Tombs, Applicant -and- 1303939 Ontario Ltd., 1776603 Ontario Inc., David Hornstein and Karen Hambrock, Respondents

Interim Decision

Adjudicator: Kathleen Martin Date: January 14, 2015 Citation: 2015 HRTO 50 Indexed As: Tombs v. 1303939 Ontario Ltd.

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 addresses a Request for Order During Proceedings to remove 1776603 Ontario Inc., David Hornstein and Karen Hambrock as parties to the proceeding.

BACKGROUND

3The Application was filed on December 12, 2012 and alleges discrimination in employment on the basis of disability. The Application arises out of the applicant’s attempt to return to work at the Holiday Inn Express following an absence for medical reasons, from April 2011 to January 15, 2012. The applicant alleges that she was not returned to her former position. Among other things, the applicant alleges that when she raised the issue of returning to work after her leave, the general manager, Karen Hambrock, became annoyed telling the applicant that she had a “business to run” and that the applicant was required to undertake training of four hours after which Ms. Hambrock would “determine my competency” to work. The applicant also alleges that it was reported to her that David Hornstein., the owner of the hotel, wanted to have a “clean slate” (suggesting that Mr. Hornstein was behind the imposition of the requirement).

4The applicant declined the offer of “integration” back into the workplace and it would appear that a Record of Employment was subsequently issued reflecting that the applicant had quit.

5Based on the Application, there was some ambiguity as to who the applicant was intending to name as respondents. After several attempts to obtain clarification, the Registrar identified the Application as being filed against only a single respondent, Intercontinental Hotel Group (IHG) and delivered the response to this respondent. This then named respondent filed a Request for Order During Proceedings correcting its name to Holiday Hospitality Franchising, LLC (“HHF”) and seeking that it be removed as a party. In support of its Request, HHF stated that the applicant’s employer was the Holiday Inn Express Hotel, which is independently owned, operated and managed by a licensee. HHF identified that as of August 25, 2010 the licensee was 1776603 Ontario Inc. (“1776603”). The IHG forwarded a copy of the Application and its submissions to 1776603 and the president of that company, David Hornstein.

6As a result of the applicant’s responses to this Request, the Tribunal issued an Interim Decision, 2013 HRTO 1574, removing HHF as a party. The Tribunal stated that the Application would continue to be processed against the two individuals initially referenced in the original Application (David Hornstein and Karen Hambrock) and 1776603.

7As the Application proceeded, there continued to be an issue as to whether or not the proper respondent(s) had been named. On November 14, 2013, the respondents filed a Request for Order During Proceedings seeking their removal as parties. The respondents stated that none of them were the applicant’s employer and that the applicant’s employer at all material times was a different numbered company, 1303939 Ontario Ltd. (“1303939”).

8The respondents stated that while 1776603 initially owned the hotel development that became the hotel where the applicant worked, on October 25, 2010 it sold the assets to 1303939 and that subsequently, it had also transferred the licence agreement to operate as a Holiday Inn Express to that numbered company. The respondents provided a copy of the asset purchase agreement, but state that they are unable to locate the executed assignment or transfer assigning the licence agreement. The respondents state that the respondent, David Hornstein, is director and shareholder of both corporations, along with another shareholder. The respondents state that Karen Hambrock is the general manager of the Holiday Inn Express and an employee of 1303939.

9The applicant filed a Response to the Request, a Request for Order During Proceedings to add a new party and a Request for a Tribunal Ordered Inquiry to determine the “employer and employers”. While the filings are somewhat different in content, in essence, the applicant seeks to add 1303939 and opposes the removal of the other parties. In explaining her opposition, the applicant states that her pay slips are not consistent as to who is her employer, with some indicating 1303939 and others indicating Dynamic Hospitality and Hornstein Construction as the employer (it is unclear if the latter are separate companies from 1776603). In addition, the applicant relies on the absence of the documentation supporting the transfer or assignment of the licence to 1303939.

10By Interim Decision, 2014 HRTO 475, the Tribunal added 1303939 as a respondent and ordered the other named respondents to file a Response. The Tribunal stated that where there are issues with respect to the inclusion of parties, it is usually dealt with on the basis of a full record and the disposition of requests occurs after mediation.

11The Application was scheduled for mediation. In accordance with its usual process, the Tribunal did not address the respondents’ request that they be removed and it remained outstanding.

12By Notice of Hearing dated October 27, 2014, the Application was scheduled for hearing on April 1 and 2, 2015. The Notice of Hearing required that the parties exchange their arguably relevant documents by November 17, 2014 and that they disclose and file their witness statements by February 17, 2015.

13On the day the exchange of arguably relevant documents was to occur, the respondents sought an extension of the deadline on the basis that it was premature to exchange documents given the outstanding Request. The applicant appears to have complied with the disclosure obligation.

DECISION

14I have determined that at this stage the Application will continue against all respondents.

15On the basis of the material filed and submissions made, the question of who is the applicant’s employer is far from clear. The applicant does not appear to accept the submission that 1303939 is her employer or at least without an opportunity to question the representations made. While the Tribunal requires support for a position being advanced, I am mindful that the originally named respondent appeared to suggest that 1776603 was the licensee (which would be the applicant’s employer). Also, the documentation provided is incomplete insofar as there is no documentation supporting the assignment of the licence and the pay slips do not consistently refer to 1303939 as the entity paying the applicant. In all the circumstances, I find that it is necessary to hear evidence on the issue of the identity of the employer.

16With respect to the named individuals, based on the material filed, I find it premature to make any final determination about whether or not either should be removed.

17It would appear that at this stage, the conduct of Ms. Hambrock will be a central issue in the hearing. Ms. Hambrock is identified as the individual that the applicant primarily dealt with regarding her return to work and the applicant has made specific allegations against Ms. Hambrock (including that when she sought to return, Ms. Hambrock became annoyed and told the applicant that she had a “business to run”). While the role of Ms. Hambrock is not entirely clear insofar as Ms. Hambrock states in her Response that she consulted with “the employer” about the applicant’s return to work, the person(s) is not identified nor are details provided. Based on the foregoing, I find that it would premature to remove Ms. Hambrock as depending on what evidence is accepted, the Tribunal may determine that there is a reason to make an award against Ms. Hambrock.

18The allegations against David Hornstein are less clear and thus it is more challenging to assess whether or not he should remain a party. On the one hand, the applicant does not describe any direct interactions with this respondent. However, the applicant does allege that David Hornstein had been expected to be at the return to work meeting, and that another manager at the meeting pointed to Mr. Hornstein as the reason for the conditions being placed regarding the applicant’s return to work; namely, David Hornstein “just wants a clean slate”. Further, as set out above, in her response, Ms. Hambrock states that she “consulted” with the employer before the meeting, without identifying what exactly occurred and who was involved in the consultation. At this stage, until further particulars are provided and/or evidence is presented, I find it premature to remove Mr. Hornstein.

19My decision to continue the Application against both respondents is not a final decision as to whether either is liable for the alleged discrimination should discrimination be proven, nor is it a decision that if either respondent is found liable, it will result in a remedy being ordered against them. The parties will have an opportunity to make submissions on this issue as this Application continues to be processed.

DIRECTIONS

20The Tribunal directs:

• The Respondents’ Request for Order During Proceedings to remove 1776603 Ontario Inc., David Hornstein and Karen Hambrock is denied at this time;

• The deadline for exchanging arguably relevant documents is extended from November 17, 2014 to January 27, 2015; and

• Unless amended here, the remaining deadlines and other requirements given in the Notice of Hearing dated October 27, 2014 including the deadline for disclosing and filing witness statements and documents to be relied upon (Rules 16.2, 16.3, 17.1 and 17.2) remains unchanged.

21The Tribunal’s Rules of Procedure are available at www.hrto.ca under “Law, Rules and Policies”. In addition, the parties may benefit from reviewing the Tribunal’s “Guide to Preparing for a Hearing before the HRTO”, available at www.hrto.ca under “Guides and Forms”.

22A copy of the Tribunal’s Mediation/Adjudication Agreement is attached to this Interim Decision should the parties wish to participate in that process at the hearing.