Moore v. The Estate of Lou Ferro, 2017 HRTO 1306

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philton Moore

Applicant

-and-

The Estate of Lou Ferro, personally and c.o.b. as Ferro & Company,

Ellen Helden and 1312788 Ontario Limited

Respondents

-and-

Bayview Personal Injury Lawyers

Affected Party

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: October 4, 2017

Citation: 2017 HRTO 1306

Indexed as: Moore v. The Estate of Lou Ferro

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Interim Decision 2017 HRTO 739, dated June 26, 2017.

2On July 26, 2017, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. In making this Reconsideration Decision, I have considered the applicant’s amended Request for Reconsideration as filed later in the afternoon on July 26, 2017, as well as the applicant’s further submissions in support of his Request for Reconsideration filed by e-mail correspondence dated August 2, 2017.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction on Reconsideration to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers.

5As indicated, reconsideration is only available from a “final decision” of this Tribunal. While the Decision which is the subject of the applicant’s Request for Reconsideration was titled as an “Interim Decision”, I agree with the applicant that this Decision is a “final decision” within the meaning of s. 45.7 of the Code to the extent that it denied the applicant’s request to add Bayview Personal Injury Lawyers (“Bayview”) as a party respondent to this proceeding, and to the extent that it upheld the statutory stay under the Bankruptcy and Insolvency Act (“BIA”) as against The Estate of Lou Ferro, personally and carrying on business as Ferro & Company, which prevents the applicant from seeking monetary compensation as against The Estate of Lou Ferro.

6The Tribunal’s Practice Direction on Reconsideration includes the following:

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.

7As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open 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.

8In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

9The Tribunal’s Rules of Procedure provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 26.5 of the Rules provides:

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.

10As a result, I need to determine whether the material filed by the applicant in support of his Request for Reconsideration satisfies the criteria set out in Rule 26.5 relied upon in the Request. The applicant relies upon the criteria identified in Rule 26.5(c) and (d).

The status of Ferro & Company

11The applicant first submits that I erred in failing to find that Ferro & Company was an “unincorporated association” rather than being a sole proprietorship operated by the late Mr. Ferro.

12The applicant submits that in making this finding, I failed to take judicial notice of various pieces of legislation, including the Legislation Act, the Partnerships Act and the Business Corporations Act. I am not clear about how the applicant is alleging that I failed to take judicial notice of this legislation. There is no definition of “unincorporated association” in any of these pieces of legislation.

13I accept the applicant’s submission that an “unincorporated association” is a “voluntary group of persons, without a charter, formed by mutual consent for the purpose of promoting a common enterprise or prosecuting a common objective” or “an organization composed of a body of persons united with a charter for the prosecution of a common enterprise.” An example of an “unincorporated association” is a group of neighbours who band together to oppose a proposed zoning by-law, but who are not formally constituted as a sole proprietorship, partnership or corporation.

14The applicant’s argument is that Ferro & Company has some legal status separate and apart from the late Mr. Ferro, such that Mr. Ferro’s personal declaration of bankruptcy and the statutory stay of proceedings as against Mr. Ferro personally does not extend to and encompass Ferro & Company. The problem with this argument, as stated in my Decision at paras. 5 and 6, is that Ferro & Company was registered as a business name by the late Mr. Ferro “to carry out the activity of a law firm as a sole proprietorship.” As I said in the Decision, this is not unlike many small businesses and law firms that operate as sole proprietorships. An “unincorporated association” is, by definition, a status that is different and distinct from a sole proprietorship, partnership or corporation. See, for example, the definition of “person” in the Business Names Act, R.S.O. 1990, c. B.17, which distinguishes between a sole proprietorship, a partnership, a body corporate and an “unincorporated association.” Given that the late Mr. Ferro had registered Ferro & Company as a business name to be used by a sole proprietorship and that this is a very common form of organization for law firms and many other businesses, it is clear to me that this is what Ferro & Company is, which excludes the possibility of characterizing Ferro & Company as an “unincorporated association.”

15Given the material before me, it is clear that Ferro & Company is a sole proprietorship, and thus has no legal status separate and apart from the late Mr. Ferro.

Bayview Personal Injury Lawyers

16With regard to my decision not to add Bayview as a party respondent, the applicant submits that I overlooked and ignored his submissions, including that the Ferro & Company law firm’s e-mail was used for Bayview’s contact information and that Bayview was registered in the name of Ferro & Company with Ferro & Company’s address and telephone number.

17What the applicant in fact submitted is that he conducted a Google search on March 9, 2017 and obtained information that a website called “ferro-accident-lawyers.com” had been updated by Ms. Poproski showing her organization as Bayview Lawyers and with the address and phone number that had previously belonged to Ferro & Company. In addition, the contact is shown as “[name]@ferrolawyers.com.” This, the applicant submitted, was evidence that Ferro & Company is the same organization as Bayview.

18With respect, I disagree. As stated in my Decision at para. 63:

The material before me indicates that the Ferro & Company law practice was permitted to continue operating by the former trustee for a period of time, until the firm’s files were transferred to a third party law firm and the practice wound down. It appears that Ms. Poproski then created her own professional corporation to carry on a law practice with many of the same lawyers and staff who previously worked for Ferro & Company, operating out of the same premises. There is nothing unusual or subversive about that, especially in the wake of Mr. Ferro’s declaration of personal bankruptcy and subsequent death.

19Further, at para. 68 of my Decision, I stated:

The fact that many of the employees are the same and that Bayview operates out of the same premises is not unusual where a former business ceases to exist, whether due to bankruptcy, death or a sale, and a new business continues to operate.

20The fact that Ms. Poproski, through Bayview, updated a registration for a website called “ferro-accident-lawyers.com” sometime prior to March 3, 2017, and that a Bayview staff member continued to use an e-mail address including “ferrolawyers.com” at least at that time does not serve to establish that Bayview and Ferro & Company were jointly operating a law firm at the relevant time in 2011, such that Bayview could be held liable for the alleged violations of the Code raised in this proceeding. At its highest, Bayview may be regarded as a successor business to Ferro & Company, to which liability under the Code does not extend: see my Decision at para. 59 and the cases cited therein.

21The applicant further submits that I ignored or overlooked the fact that Bayview Lawyers was not just a registered name in 2010, but that it was also an entity in existence at that time working with the Ferro & Company law firm. The material before me simply does not support any such proposition. The applicant relies on the name Ferro & Company to suggest that the “& Company” extends to encompass Bayview. There is simply nothing to support this assertion. The applicant then relies upon the fact that Bayview Lawyers was registered by Ms. Poproski as a domain name in October 2010. As stated in my Decision at para. 60:

These documents do not provide any evidence that Bayview Lawyers was actually in business at the time relevant to this proceeding, namely in 2011, let alone that it was acting as a “common employer” with Ferro & Company at that time. These documents only establish that Ms. Poproski may have registered the name “Bayview Lawyers” at that time.

22The applicant submits that I failed to consider or mention his submission about labour cases dealing with common or related employers. Once again, I disagree. As stated, the material provided by the applicant fails to establish that Bayview was in fact operating as a business in 2011, as opposed to merely having been registered on the internet as a domain name. The fact that Bayview may have made use of the Ferro & Company name and the history of that firm in its advertisements and job postings some five or more years after the events at issue in this proceeding does not serve to establish that Bayview was operating as a business at all in 2011, let alone jointly with Ferro & Company.

23In his e-mail correspondence dated August 2, 2017, the applicant further submits that I failed to consider his submissions regarding the Partnerships Act and his submission that Bayview existed at the same time as Ferro & Company and that its sole director Ms. Poproski was working in association or partnership with Ferro & Company. The applicant submits that Bayview and Ferro & Company were a “partnership”, relying particularly on some internet registrations made by Ms. Poproski in 2014 identifying “Bayview Lawyers” as the organization. Once again, nothing in these submissions serves to establish that Bayview was operating as a business at the relevant time in 2011, such that it can potentially be held liable under the Code as a result of the applicant’s allegations raised in this proceeding.

Ruling re disclosure

24The applicant finally takes issue with my ruling in the Decision denying his request for production of certain documents from the trustee-in-bankruptcy and Bayview. A ruling on a request for disclosure is not a final decision, but is interim or procedural in nature. Thus, my ruling in relation to the applicant’s disclosure request is not amenable to reconsideration.

Conclusion

25As a result, the applicant has failed to satisfy me that my Interim Decision dated June 26, 2017 is in conflict with established jurisprudence or Tribunal procedure, or that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

ORDER

26For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.