Pay Equity Hearings Tribunal
2256-08-PE Saydat Hospitality Inc. operating as Comfort Inn Motel (Welland), Applicant v. Beverly Pottle, Respondent.
BEFORE: Diane L. Gee, Chair, Catherine Bickley and Margaret Kvetan, Members.
DECISION OF THE TRIBUNAL: May 25, 2009
1This is an application filed by Saydat Hospitality Inc., operating as Comfort Inn Motel (Welland) (“Saydat”) asking for an Order from the Pay Equity Hearings Tribunal (the “Tribunal”) varying an Order issued by a Review Officer on March 27, 2008 so as to provide that the Order is as against 2059419 Ontario Inc. (formerly operating as Comfort Inn Motel (Welland) (“2059419”) and not against Saydat. The Review Officer’s Order finds that the decision of Comfort Inn Motel, Welland, Ontario to terminate Ms. Pottle’s employment was tainted by anti-pay equity animus. “Comfort Inn Motel, Welland, Ontario” is, amongst other things, ordered to pay Ms. Pottle damages. It would appear that “Comfort Inn Motel, Welland, Ontario” is not a legal entity but rather an operating name.
2According to the facts as set out in the application, the respondent, Beverly Pottle, was terminated from her employment with 2059419 on September 21, 2007. Saydat purchased the business and assets of 2059419 in a transaction that closed on March 19, 2008. Saydat never employed Ms. Pottle. The application states that when Saydat purchased 2059419 it did not assume any of the liabilities of 2059419. In her response to the application, Ms. Pottle agrees with these assertions of fact.
3By letter dated May 11, 2009, signed by both Saydat and Ms. Pottle, the Tribunal is advised that the parties have agreed that the Order of the Pay Equity Commission dated March 27, 2008 be amended to delete the description of the employer/respondent as “Comfort Inn Motel, Welland, Ontario” and in its place and stead insert “2059419 Ontario Inc.” The letter indicates that a copy of the instant application has been served on 2059419 by sending a copy to counsel of record for 2059419 as well as to the registered head office of 2059419.
4While the Tribunal is satisfied that Saydat may have served a copy of the instant application on 2059419, given that 2059419 is not a named responding party, the mere service of the application on 2059419 would not trigger an obligation on the part of 2059419 to file a response with the Tribunal. Further, 2059419 is not a party to the agreement between Saydat and Ms. Pottle. The Tribunal has no way of knowing if 2059419 is in agreement with the variance requested. An agreement between two parties cannot affect the legal rights or be binding upon an entity that is not a party to that agreement. If this matter were to proceed, the Tribunal would have to be satisfied that 2059419 was a named responding party who had been served with the application naming it as a responding party and hence had an opportunity to file a response with the Tribunal and participate in any of its proceedings. In the alternative, any agreement reached affecting the legal rights of 2059419 would have to be signed by a representative of 2059419.
5Having regard to the foregoing, the request set out in the letter of May 11, 2009 is denied. The applicant has until June 30, 2009 to either provide the Tribunal with an agreement signed by a representative of 2059419 or amend its application so as to name 2059419 as a responding party and deliver a copy of such amended application to both Ms. Pottle and 2059419 (in the case of 2059419 the applicant must also provide the documents listed in Rule 14 of the Tribunal’s Rules of Procedure) and file one copy with the Tribunal failing which this application will be automatically dismissed without further notice to the parties.
Dated at Toronto this 25th day of May, 2009.
“Diane L. Gee”______
Diane L. Gee, Chair
“Catherine Bickley”
Catherine Bickley, Member
“Margaret Kvetan”___________
Margaret Kvetan, Member