Ariyakuddy v. Collins & Aikman Automotive Canada, 2009 HRTO 1075

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ariyaratnam Ariyakuddy

Complainant

-and-

Ontario Human Rights Commission

Commission

-and-

Collins & Aikman Automotive Canada Inc., Terry Merza, John DeSouza and Les Kelemen

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: July 20, 2009

Citation: 2009 HRTO 1075

Indexed as: Ariyakuddy v. Collins & Aikman Automotive Canada

1This Interim Decision confirms certain directions given in a teleconference call held on July 6, 2009 and determines the time granted to the complainant and Commission to bring a motion to lift a stay or proceedings against the corporate respondent.

BACKGROUND

2This is a complaint referred to the Tribunal by the Ontario Human Rights Commission (the “Commission”) under the old Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”). The complaint alleges the complainant was harassed and discriminated on the basis of his disability in his employment with the corporate respondent and suffered reprisal for seeking to claim and enforce his rights under the Code. The original complaint and referral to the Tribunal was against the corporate respondent and three individual respondents.

3Since the complaint was referred to the Tribunal, the corporate respondent, became subject to proceedings under the Companies’ Creditors Arrangement Act, R.S.C. 1985,c.C-36, as amended (the “CCAA”).

4On July 6, 2009, a conference call was scheduled to address a number of issues including:

• Is there a stay of the proceeding, and if yes, what is the basis of the stay, including how does the Stay apply to the corporate respondent as named in the referral?;
• If there is a stay of proceeding, which respondents are covered by it?

5The participants in the conference call were counsel for the complainant, counsel for the corporate respondent and Terry Merza. As with earlier conference calls held on this file, two of the individual respondents did not attend and no objection was raised by those present to continuing without their participation. Correspondence sent to the personal respondents Mr. DeSouza and Mr. Kelemen at their last known addresses by Purolator courier notifying them of the conference call has been returned to the Tribunal; the same correspondence sent by regular mail has not been retuned.

Name of Corporate Respondent

6On consent of the parties, the name of the corporate respondent is amended to Collins & Aikman Automotive Canada Inc. and the style of cause is amended accordingly.

Party Status of Ontario Human Rights Commission

7The Commission indicated that it was presently seeking instructions as to whether or not it would be continuing as a party in this matter. During the conference call, the Tribunal directed, on consent of the parties, that the Commission confirm its intentions by July 24, 2009.

8Should the Commission be seeking leave to withdraw, the Commission is directed to file a Request For Order During Proceeding by that date and include in such Request whether it wishes to continue to receive ongoing notice of the proceeding. The complainant and respondents may file a response to the Request in accordance with the Rules and in any such response should address whether they are any transitional issues raised by the Commission seeking leave to withdraw.

Stay Against Corporate Respondent

9Paragraphs 15 and 16 of the Order of the Ontario Superior Court of Justice (Court File No. 07-CL-7072), dated July 19, 2007 provides as follows:

THIS COURT ORDERS that until and including July 30, 2007, or such later date as this Court may order (the “Stay period”), no proceeding or enforcement process of any court or tribunal (each a “Proceeding”) shall be commenced or continued against or in respect of the Applicant or the Monitor, or affecting the Business or the Property of the Applicant except with the written consent of the Applicant and the Monitor, or with leave of this Court, and any and all Proceedings currently under way against or in respect of the Applicant or affecting the Business or the Property are hereby stayed and suspended pending further Order of this Court.

THIS COURT ORDERS that during the Stay Period, except as provided herein, all rights and remedies of any individual, firm, corporation, governmental body or agency, or any other entities (all of the foregoing, collectively being “Persons” and each being a “Person”) against or in respect of the Applicant or the Monitor, or affecting the Business or the Property of the Applicant, are hereby stayed and suspended except with the written consent of the Applicant and the Monitor, or leave of this Court, provided that nothing in this Order shall (i) empower the Applicant to carry on any business which the Applicant is not lawfully entitled to carry on, (ii) exempt the Applicant from compliance with statutory or regulatory provisions relating to health, safety or environment, (iii) prevent the filing of any registration to preserve or perfect a security interest, or (iv) prevent the registration of a claim or lien.

10Subsequent to that date, the Stay has been extended on several occasions. At the time of the conference call, the Stay has been extended to September 18, 2009.

11I sought and received submissions with respect to the Stay. None of the parties questioned the application of the Stay to the Tribunal’s proceeding in respect of the corporate respondent and no party suggested that it applied in respect of the individual respondents. The complainant sought as much time as possible as the Tribunal was prepared to grant to lift the stay on the basis that her client would need to seek alternative counsel to act on his behalf in respect of any motion that may be brought to lift the stay. The corporate respondent requested that the complainant bring any motion before September 18, 2009 so that the financial implications of any such request can be considered during its next appearance on the Stay, which it suggested would be in or around the time of the expiry date.

12I confirm my ruling that the complaint is stayed as against Collins & Aikman Plastics Automotive Canada Inc. pending leave of the Ontario Superior Court of Justice (Commercial List) or with the written consent of the applicable applicant and Monitor until September 18, 2009 or such later date as the Court may order unless the complainant or Commission bring a motion to lift the Stay or otherwise meet the conditions set out in the Court’s Order. I have considered the parties’ submissions and find it appropriate to order that the complainant have until September 15, 2009 to have the stay lifted.

13Should the complainant and/or Commission decide not to lift the stay, the Tribunal has not yet decided if and how the continuance of a stay will affect the continuation of this proceeding against the individual respondents. In this regard, complainant’s counsel stated that she needed to seek instructions from her client as to his position regarding the continuance of this proceeding against the individual respondents. If necessary, this issue will be addressed after September 18, 2009.

14The Registrar-Transition is asked to send a copy of this Interim Decision to the last known addressees of the individual respondents.