John Berry v. Lear Corporation – Whitby Ontario Canada, 2009 HRTO 1724

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Berry

Applicant

-and-

Lear Corporation – Whitby Ontario Canada

Respondent

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: October 20, 2009

Citation: 2009 HRTO 1724

Indexed as: Berry v. Lear

1This is an Application filed April 7, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability and reprisal or threat of reprisal in employment. The respondent submits that the Application is stayed or suspended pursuant to a Recognition Order (the “Order”) under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”). The purpose of this Interim Decision is to provide further directions regarding the continuation of this proceeding.

2As the respondent did not file a Response to the Application within the time set out in the Notice of Application, the Tribunal issued an Interim Decision, 2009 HRTO 1182, directing the respondent to file a Response by August 10, 2009, together with an explanation why it was not filed in accordance with the deadline, if it wished to participate in the proceeding.

3On August 10, 2009, the respondent’s representatives wrote to the Tribunal advising that on July 9, 2009 the Ontario Superior Court of Justice (the “Court”) issued an Order on an Application by Lear Canada, Lear Canada Investments Ltd., Lear Corporation Canada Ltd., and others, under section 18.6 of the CCAA. The respondent advised that the companies to whom the Order applies own, operate and/or control the respondent and submitted that the Order stayed or suspended this Application as of July 9, 2009. The respondent provided the Tribunal with a copy of the Order which states, in part, as follows:

THIS COURT ORDERS that until and including August 7, 2009, or such other date as this Court may order (the “Stay Period”), no proceeding or enforcement process in any court or tribunal in Canada (each, a “Proceeding”) shall be commenced or continued against or in respect of the Applicants, or affecting: (i) the current and future assets, undertakings and properties of the Canadian Applicants,of every nature and kind whatsoever, and wherever situate including all proceeds thereof (the “Property”); or (ii) Applicants’ business (the “Business”), except with the written consent of the Applicants or with leave of this Court, and any and all Proceedings currently under way against or in respect of the Applicants or affecting the Business or the Property are hereby stayed and suspended pending further Order of this Court.

4The respondent also submitted that, as a result of the Order and the stay or suspension of proceedings provided for therein, the deadline for filing its Response has not yet passed. The respondent advised that it will file a proper Response if the matter is continued upon Lear’s emergence from the protections of the CCAA, or if the applicant, at an earlier date, obtains leave of the Court to continue the proceeding.

5On August 21, 2009, the Tribunal wrote to the parties and provided the applicant with a copy of the respondent’s August 10, 2009 letter and a copy of the Order. The applicant was directed to provide the Tribunal with any submissions that he may have in response to the respondent’s position as outlined in its letter. The respondent was directed to provide the Tribunal with information as to the status of the Order and any further submissions the respondent may wish to make in reply to the applicant’s submissions. In the event the Order was extended beyond August 7, 2009, the respondent was asked to forward a copy of any such extension.

6The applicant submitted, among other things, that the respondent has been given a new contract that will extend production to 2012. He also submitted that the respondent did not respond to his Application as a delay tactic as the respondent knew about going into protection. The respondent provided a copy of an Order of the Court, dated August 6, 2009, extending the Stay Period in the initial Order to November 20, 2009, inclusive.

CONTINUATION OF PROCEEDING

7It appears to the Tribunal that the Court’s Order, pursuant to the CCAA, has the effect of staying or suspending this proceeding. As such, the respondent is not required to file a Response at this point in time.

8In the circumstances, the Tribunal shall take no further steps in this matter for a period of up to one year unless contacted by one of the parties. If the Stay Period is not extended beyond November 20, 2009 (or expires at some later date in the next 12 months), the applicant should advise the Tribunal in writing if he wishes his Application to proceed, within 20 days of the expiry of the Stay Period. Similarly, if the applicant obtains leave of the Court to continue with his Application, he should advise the Tribunal in writing within 20 days of obtaining leave. If the Stay Period is extended beyond October 20, 2010, and the applicant wishes his Application to remain in abeyance, he should advise the Tribunal in writing. If the applicant does not communicate with the Tribunal by October 20, 2010, the Application may be dismissed as abandoned.

9The Tribunal further directs that the respondent advise the applicant in writing of any extensions to the Stay Period that may be granted by the Court in the period up to and including October 20, 2010, within 10 days of any such extension.

10The Tribunal reminds the parties that all written communications with the Tribunal should be copied to the other party.

11I am not seized.