Matheson v. Smurfit Stone Container Canada, 2009 HRTO 1080

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erica Matheson

Applicant

-and-

Smurfit Stone Container Canada Inc. and Carolyn McDermott

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: July 21, 2009

Citation: 2009 HRTO 1080

Indexed as: Matheson v. Smurfit Stone Container Canada

1This Application, alleging discrimination on the basis of sex by Smurfit Stone Container Inc. and Carolyn McDermott was filed on November 18, 2008. In the Response, which stated on its face and in the cover letter that it was filed on behalf of Smurfit-MBI and Ms. McDermott, the respondents stated that there is an Order of the Superior Court of Justice staying proceedings against the corporate respondent pursuant to the Companies’ Creditors’ Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”) and argued that the matter should not proceed in the circumstances. The respondents have also filed a Request for Order that the Application be stayed.

NAMING OF THE CORPORATE RESPONDENT

2Counsel for the respondents has since provided correspondence that suggests that the Response was only filed on behalf of Ms. McDermott and that the statement in the Response and cover letter that it was also filed on behalf of Smurfit-MBI was an error. In the circumstances, the Response is amended accordingly and the corporate respondent shall be shown in the Tribunal’s records as Smurfit Stone Container Canada Inc.

MEDIATION

3In the Application and Response, the parties indicated that they agreed to mediation. The Tribunal therefore scheduled mediation. In subsequent correspondence, counsel for the respondent has objected and suggested that there was something improper about the Tribunal scheduling mediation in light of the Court order. Mediation in the Tribunal process is purely voluntary, and a decision not to mediate has no effect on a party’s case. The Tribunal’s experience is that in some cases, respondents subject to bankruptcy and CCAA stays decide to attend mediation, reserving, of course, their right to assert that a hearing cannot proceed cannot proceed in light of the Court order. Personal respondents may also wish to attend mediation in such circumstances. If a party does not wish to mediate, it need merely advise the Tribunal of this and should not mark the relevant box on the Tribunal’s forms.

4As the respondents are not prepared to mediate, the scheduled mediation is cancelled.

STAY OF PROCEEDINGS

5The Order of the Superior Court of Justice provides, in relevant part, as follows:

14. THIS COURT ORDERS that until and including February 25, 2009, or such later date as this Court may order (the “Stay Period”) no proceeding or enforcement process in any court or tribunal (each, a “Proceeding”) shall be commenced or continued against or in respect of the Applicants, the Partnerships or the Monitor, or affecting the Business or the Property, except with the written consent of the applicable Applicant or Partnership, the DIP Agent and the Monitor, or with leave of this Court, and any and all Proceedings currently under way against or in respect of the Applicants, the Partnerships or affecting the Business or the Property are hereby stayed and suspended pending further Order of this Court.

This Order has now been extended by the Court until September 30, 2009. The applicant did not respond to this aspect of the respondents’ Request for Order, although she was provided with notice.

6In light of the Court order, the Application as against Smurfit Stone Container Canada Inc. may not proceed without written consent of the respondent, the DIP agent and the Monitor or leave of the Superior Court of Justice. As it is clear that consent will not be given, the applicant will need to seek leave of the Court in order to proceed at the Tribunal.

7Although the parties did not make submissions on this, it also appears that the Order may prevent the Application from proceeding as against Ms. McDermott, since proceeding with the Application as against her may “affect the Business or the Property”. Accordingly, the Tribunal requests written submissions from the parties on whether the Order prevents the Application from proceeding as against the personal respondent. The respondents may make submissions, which shall be sent to the Registrar and copied to the applicant, by August 4, 2009. The applicant may make submissions, which shall be sent to the Registrar and copied to counsel for the respondents, by August 18, 2009. The respondents may reply by August 25, 2009.

REQUEST TO ADD A PARTY

8The respondents seek to add the applicant’s bargaining agent, USA-IWA, Local 1-500 as a party on the basis that it did not bring forward the applicant’s grievance based on the same facts. The applicant consents. There is, however, no allegation made that the union violated the Code by treating the applicant in a discriminatory manner on the basis of a prohibited ground and therefore no basis to add it as a party: see Traversy v. Mississauga Professional Firefighters’ Association, 2009 HRTO 996 at para. 17; Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025 at paras. 16-17. The Request to add the union as a party is dismissed.

9The Tribunal draws the applicant’s attention to the Applicant’s Guide, available on the Tribunal’s website at www.hrto.ca or from the Registrar’s office. The Guide, at pages 2–3, provides a list of resources available to applicants appearing before the Tribunal.

10I am not seized