Durocher v. The Empty Plate Eatery Inc., 2016 HRTO 581

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kelly Durocher

Applicant

-and-

The Empty Plate Eatery Inc. and Mark VanderVeer

Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: May 3, 2016 Citation: 2016 HRTO 581 Indexed as: Durocher v. The Empty Plate Eatery Inc.

WRITTEN SUBMISSIONS

Kelly Durocher, Applicant

Shannon Sproule, Counsel

The Empty Plate Eatery Inc. and Mark VanderVeer, Respondents

Jonathon Pitblado, Counsel

1This is an Application dated April 9, 2015, alleging discrimination with respect to employment because of sex, sexual harassment and solicitation, and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The purpose of this Interim Decision is to address the following matters: (1) the respondents’ request to attend the hearing by videoconference; (2) clarification as to the proper corporate respondent to this Application and the applicant’s request to amend the Application to reflect the proper identity of the corporate respondent; and (3) the applicant’s request for production of certain documents from the personal respondent.

Request to testify by videoconference

3By Request for Order dated March 30, 2016, the respondents sought an order permitting the respondents to attend the hearing on May 30, 2016 by videoconference from Alberta. While the Request for Order filed by the respondents does not set out any submissions in support of this request, the Tribunal’s file indicates that the personal respondent and the owner of the corporate respondent, who are husband and wife, moved to Alberta after closing their restaurant in Sarnia. They state that they do not have the funds to travel from Alberta to Ontario, at least as of early August 2015. Documents attached to the Request for Order show that the owner of the corporate respondent, Maureen VanderVeer, made a personal assignment in bankruptcy in June 2015.

4The applicant opposes this request for two reasons: (1) the respondents have failed to provide reasons to justify their request; and (2) the applicant would be significantly prejudiced because this case depends entirely upon an assessment of credibility and therefore an in-person oral hearing is necessary.

5I agree with the applicant’s position on this issue. While I understand that Ms. VanderVeer has made a personal assignment in bankruptcy and that she and the personal respondent now reside in Alberta, this is insufficient to establish that she and the personal respondent are unable to attend the hearing in Ontario. I have no information or supporting documentation regarding the personal respondent’s current financial circumstances, whether or not the personal respondent and/or Ms. VanderVeer are currently employed in Alberta, or what means they have considered to travel to Ontario, including by car.

6This Tribunal has stated that its ordinary expectation is that participants, especially parties, make themselves available in person to testify and submit to cross-examination and also be present in person to question other witnesses. This is particularly the case where, as here, there are serious issues of credibility to determine. This Tribunal generally has not considered the expense of travelling to a hearing to be a sufficient justification for allowing a party to participate by video or teleconference: see Haskins v. Religious Hospitaliers of Hotel Dieu of St. Joseph of the Diocese of London, 2010 HRTO 1550; Pinkney v. Datex Billing Services, 2009 HRTO 1732.

7For these reasons, the respondents’ request to attend the hearing by videoconference is denied.

The proper identity of the corporate respondent

8In their Request for Order, the respondents sought clarification as to the proper identity of the organizational respondent. At the time the Application was filed, the organizational respondent was identified as “The Empty Plate Breakfast and Lunch Eatery”. In the Response, the respondents raised no issue as to the naming of the organizational respondent and identified it as a “sole proprietorship”.

9In fact, as it turns out, “The Empty Plate Breakfast and Lunch Eatery” is a business name used by a corporation called “The Empty Plate Eatery Inc.” This was clarified in a Request for Order filed by the applicant seeking to amend the Application to identify the organizational respondent by its correct name.

10This request is granted and the title of proceeding is amended accordingly. No prejudice is caused to the respondents by the granting of this request, given that: Ms. VanderVeer is identified in corporate search documents as the sole principal and signing officer for the corporation and she has been on notice of the proceeding throughout; the proper identity of the organizational respondent was within the respondents’ knowledge but they chose not to disclose the correct information in their Response; and there is no dispute that the events at issue are alleged to have occurred at the restaurant operating under the name identified in the Application and which is a business name used by the aforementioned corporation.

11In the respondents’ Response to Request for Order dated April 18, 2016, but not filed with the Tribunal until May 2, 2016, the respondents assert that the applicant’s Request for Order amounts to a dismissal of the Application as against Ms. VanderVeer. That is not correct. Ms. VanderVeer was never a named respondent to the Application. Rather, Ms. VanderVeer was identified in the Application as the contact person for the organizational respondent. I further note that legal counsel for the personal respondent Mr. VanderVeer has indicated that he is not representing the corporate respondent now named as the proper organizational respondent to the Application. In that event, this Interim Decision and all further correspondence in this matter will need to be sent to Ms. VanderVeer directly, as she is listed in the corporate records as the principal and sole signing officer of the corporate respondent. Accordingly, I am directing counsel for the personal respondent to provide the applicant and the Tribunal with an address for service for Ms. VanderVeer in Alberta within 7 days of the date of the Interim Decision.

Request for production

12In her Request for Order dated April 13, 2016, the applicant seeks production by the personal respondent of a hard copy of all text messages exchanged between him and the applicant on November 17, 2014, or, if he is unable to do so, that he be required to provide a detailed account of his attempts to retrieve these text messages.

13The text messages alleged to have been exchanged between the personal respondent and the applicant on November 17, 2014 form part of the allegations raised in the Application. The applicant states that she is unable to retrieve these messages herself, as they were on a device that she no longer uses.

14There is no question that these text messages are arguably relevant to the matters at issue in the proceeding, and so meet the standard for disclosure by the personal respondent.

15In his Response to Request for Order dated April 18, 2016, but not filed with the Tribunal until May 2, 2016, the personal respondent states that the old phone on which he sent and received any such text messages was either thrown away due to a cracked screen or lost in his move to Alberta well over a year ago. In these circumstances, I am unable to order the personal respondent to produce a document that can no longer be accessed. Of course, the applicant is free to cross-examine the personal respondent at the hearing in relation to the circumstances surrounding the loss of his phone.

ORDER

16For all of the foregoing reasons, I hereby make the following order:

a. The respondents’ request to attend the hearing by videoconference is denied;

b. The applicant’s request to amend the Application to identify the proper corporate respondent is granted and the title of proceeding has been amended accordingly; and

c. Within 7 calendar days of the date of this Interim Decision, counsel for the personal respondent shall provide to the Tribunal and the applicant an address for service in Alberta for Ms. VanderVeer.