Matheson v. Smurfit Stone Container Canada, 2009 HRTO 1528

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: September 23, 2009 Citation: 2009 HRTO 1528 Indexed as: Matheson v. Smurfit Stone Container Canada

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended. There is an Order of the Superior Court of Justice staying proceedings against Smurfit Stone Container Canada pursuant to the Companies’ Creditors’ Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”).

2In an Interim Decision dated July 21, 2009, 2009 HRTO 1080, the Tribunal held as follows at paras. 5-7:

The 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.

In 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.

Although 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.

3The respondents provided submissions in which they took the position that proceeding with the Application against Ms. McDermott would “affect the business” of Smurfit Stone and therefore would be contrary to paragraph 14 of the stay order. The applicant made no submissions in response to the Interim Decision.

4The allegations against Ms. McDermott appear to relate to her role in conveying human resources decisions made by Smurfit Stone. Proceeding with the Application would, in my view, affect the respondent’s business within the meaning of the Court order. Accordingly, the Application against Ms. McDermott, like that against Smurfit Stone Container Canada Inc., cannot proceed without leave of the Court or consent of the respondents.

5I note that the stay was extended until September 30, 2009. By October 9, 2009, the respondents shall advise the applicant and the Tribunal whether the stay has been further extended. If the stay has been extended, the applicant shall have until November 9, 2009, to advise the Tribunal whether she has obtained leave of the Court to proceed with the Application. If she does not do so, the Application may be dismissed as abandoned.

6I am not seized.