HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mohamod Rijal
Applicant
-and-
Distinctive Designs Furniture Inc., Benny Manasseri, Joe Sammut and Jim Moore
Respondents
INTERIM DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Rijal v. Distinctive Designs Furniture
Written submissions by
Mohamod Rijal, Applicant ) Glen Morrison, ) Representative
Distinctive Designs Furniture Inc., ) Michael D. Failes, Benny Manasseri, Joe Sammut and Jim Moore, ) Counsel Respondents )
Introduction
1In September 2004, the applicant made a complaint to the Ontario Human Rights Commission (the “Commission”) claiming that he was discriminated at his workplace because of his colour, race, and ethnic origin. His complaint to the Commission was abandoned upon filing this Application to the Human Rights Tribunal of Ontario (the “Tribunal”) under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that he lost his employment with the corporate respondent, Distinctive Designs Furniture Inc. (“Distinctive”), as a result of this discrimination.
2In an earlier Interim Decision, 2009 HRTO 297 (“Rijal #1”), the Tribunal found the Application as against Distinctive is stayed by operation of section 69 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c B-3, as amended, (the “BIA”). At paragraph 20, I held that:
Assuming the applicant does not seek any monetary relief from the respondents, but only wishes a declaration that his rights under the Code have been infringed, it is my view that that would not be a claim “provable in bankruptcy,” as the applicant would not be a creditor of Distinctive seeking a remedy. However, if it is the intention of the applicant to seek any monetary relief from any of the respondents (as the individual respondents may be entitled to contribution or indemnity from Distinctive) the applicant would be a contingent creditor of Distinctive, and, as a result, this Application would be stayed by operation of section 69 of the BIA.
3In response the applicant has, through his representative, advised the Tribunal that he was “seeking an order by the Tribunal removing the corporate respondent, “makes a motion to remove the corporate respondent from the application” and “seeks leave from the Tribunal to proceed against the three personal respondents Benny Manasseri, Jim Moore and Joe Sammut.” The applicant argues that:
The applicant was the victim of various acts of blatant, harassment and discrimination by the three personal respondents. The nature of the alleged conduct of the personal respondents are central issues in this matter and far exceed the legal threshold of any acts or thing done or omitted to be done in the course of their employment, which makes it appropriate to award remedy specifically against these personal respondents if an infringement is found.
It should be noted that a similar argument has been made in Johnson v. Yorkview Lifecare, 2009 HRTO 1338, which is a case that deals with the effect of a stay ordered in a receivership. That Interim Decision should be read as a companion case to this one.
4In reply, the respondents argue that the removal of the corporate respondent would be a “means to avoid the effect of the BIA and obtain monetary damages from the personal respondents that the corporate respondent would otherwise be liable for.”
5The individual respondents also argue that, if it is found that there is no stay in effect as against them, then they submit that (a) there is no prima facie case made out against Jim Moore; and (b) that all of the claims should be barred as having been made out of time.
Analysis
Stay
6As noted in Yorkview, I recognise that:
There are cases in which individually named respondents may be individually and personally liable for breaches of the Code. Neither the statutory stay under the BIA, nor a court stay in either a receivership or CCAA, is designed to shield solvent individuals from prosecution for acts for which they may be found to be personally liable. Having said that, the difficult questions are how such a determination is to be made and by whom? The short answer is: if the stay does not apply to individual respondents, the application can proceed. This, however, can only be determined once the evidence has been heard.
7The Interim Decision in Rijal #1 finding that the Application was stayed against the individual respondents was predicated on the Tribunal’s understanding that personal respondents were acting, at all times, within their capacity as employees. The applicant has now clarified his allegation that the personal respondents participated in “various acts of blatant, harassment and discrimination.”
Removal of corporate respondent
8The same analysis applies with respect to the removal of a bankrupt corporate respondent as it does to a respondent where the stay is as a result of a Receivership Order. As in Yorkview, given the stay was in existence at the time the Application to the Tribunal was commenced, the Application is void as against Distinctive.
Removal of Jim Moore
9It is trite law to say that either a complaint to the Commission or an application to the Tribunal must contain facts upon which, if proven, the Tribunal could find a breach of the Code. The only allegation against Mr. Moore in any of the original complaint, the application to the Tribunal or the submissions made to the Tribunal is that:
On June 12, 2003, Mr. Jim Moore, Time Study, requested that I increase the rate by 20% of a re-time style number. When I questioned why the increase, he said, “Do it or go home.”
In his April 12, 2009 submissions the applicant has modified the original allegation by characterising the “Do it or go home” comment as an arrogant reply. However, nowhere does he connect this allegedly arrogant conduct with any breach of the Code.
Delay
10The individual respondents have argued that if the stay does not apply the Application should, in any event, be dismissed against them as it was made out of time. While the Tribunal has significant case law on this issue, the applicant has not, as yet, provided its submissions on this point.
Decision
11With respect to the corporate respondent, as the Application to the Tribunal was commenced against Distinctive at a time when such an application was stayed, the Application against Distinctive is void.
12With respect to the personal respondents, to the extent that the applicant is alleging breaches of the Code by the personal respondents, not as an agent or employee of Distinctive, but as against them as individuals, the applicant should be allowed to proceed with the Application as the individuals are not covered under any stay. As a result, I find that the stay does not prevent the applicant from proceeding against the personal respondents.
13Having said that, I agree that the Application does not make out any case against the personal respondent Jim Moore him with respect to a breach of the applicant’s rights under the Code. I therefore dismiss the Application as against Jim Moore.
14Lastly, the applicant is directed to provide his written submissions with respect to whether the Application against the remaining personal respondents was filed outside the statutory time limit and, if so, any reasons to support the Tribunal exercising its s.34(2) discretion to permit the Application to proceed. These submissions are to be delivered to the respondent and filed with the Tribunal within ten days of the date of this Interim Decision. If the respondents wish, they may reply to the applicant’s submissions within five days from the date of their receipt. After reviewing the submissions, the Tribunal may dismiss the Application or issue further case management directions.
15I am not seized of this matter.
Dated at Toronto, this 27^th^ day of August, 2009.
“Signed by”
Andrew M. Diamond
Member