Martin v. Trailmobile Canada, 2009 HRTO 1759

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arthur Martin

Applicant

-and-

Trailmobile Canada Limited, John Pacheco

and Ivan Sostaric

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson

Date: October 23, 2009

Citation: 2009 HRTO 1759

Indexed as: Martin v. Trailmobile Canada

1This is an Application filed on March 1, 2009, under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”), against Trailmobile Canada Limited (“Trailmobile”) and two individual respondents, John Pacheco and Ivan Sostaric. The style of cause has been amended to reflect the correct spelling of Mr. Sostaric’s name.

2The Tribunal did not receive a Response after the Application was delivered to the respondents. By Interim Decision, 2009 HRTO 553, the respondents were directed to file a Response by May 15, 2009, together with an explanation why the Response was not filed in accordance with the deadline, if they wished to participate in the proceeding.

3None of the respondents filed a Response, but counsel for Trailmobile wrote to the Tribunal advising that Trailmobile had filed a Notice of Intention to Make a Proposal under s. 50.4(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”), and attaching a Certificate of Filing of a Notice of Intention to Make a Proposal, dated January 14, 2009 (the “Notice”). The Notice states that, pursuant to s. 69(1) of the BIA, all proceedings against Trailmobile are stayed as of the date of filing of the Notice.

4In response to Trailmobile’s correspondence, counsel for the applicant advised the Tribunal that she had no additional information or argument that would affect the Tribunal’s decision on whether there is a stay against Trailmobile. She stated that the applicant intended to proceed against the individual respondents and filed a Request for Order that the respondent advise the Tribunal (1) whether Trailmobile is still in operation and therefore whether the individual respondents were served at Trailmobile’s address; and (2) in the event that Trailmobile cannot confirm service to the individually-named respondents, confirm their last known addresses to facilitate delivery of the Application. None of the respondents responded to this request.

5In a second Interim Decision, 2009 HRTO 873, the Tribunal held that it was satisfied that the proceedings against Trailmobile were stayed pursuant to s. 69(1) of the BIA. The Tribunal also ordered, pursuant to Rule 1.7(p) of the Tribunal’s Rules, that counsel for Trailmobile provide the Registrar with a letter, copied to the other parties, stating whether the Notices of Application sent by the Tribunal to the individual respondents at Trailmobile’s business address were provided to them. If counsel was unable to confirm that they were provided with the Notices of Application, counsel was to advise why and provide the Tribunal with their last known addresses.

6In its second Interim Decision, the Tribunal also drew the attention of the individual respondents to the fact that the Application was not stayed as against them and drew their attention to Rule 5.5 of the Tribunal’s Rules. The Tribunal held that the individual respondents must immediately comply with the Tribunal’s previous order that they file a Response.

7In correspondence dated June 22, 2009, Trailmobile advised the Tribunal and the other parties that the Notices of Application sent by the Tribunal to the individual respondents at Trailmobile’s business address were forwarded to them at their last known addresses. By correspondence dated June 23, 2009, counsel for Trailmobile provided the Tribunal with the last known addresses of the individual respondents and on June 24, 2009, the Tribunal resent the second Interim Decision to them.

8The Tribunal received correspondence from Mr. Sostaric, dated July 8, 2009, and from Mr. Pacheco, dated July 9, 2009, indicating that they never received a copy of the Application and requesting a copy. On July 13, 2009, an Amended Notice of Application was sent to the parties, directing the respondents to file a Response (Form 2) within 35 days of July 13, 2009.

9On August 17, 2009, Mr. Sostaric filed a Response. In his Response, Mr. Sostaric states, among other things, that he was the Human Resources Manger and should not be named as a respondent in this case.

FAILURE TO RESPOND

10The Tribunal has not received a Response from Mr. Pacheco and the time for doing so has passed. In the circumstances, Mr. Pacheco is reminded that a Tribunal application is a legal proceeding. If a violation of the Code is found the Tribunal may order a respondent to make monetary compensation or other forms of restitution to the applicant and to take steps to promote future compliance with the Code. Failure to file a Response may lead to orders against a respondent without their participation. Mr. Pacheco’s attention is drawn to Rule 5.5 of the Tribunal’s Rules which reads as follows:

Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

11If Mr. Pacheco wishes to participate in this proceeding, he must file a Response within 7 days of the date of this Interim Decision, together with an explanation why a Response was not filed in accordance with the deadline contained in the Amended Notice of Application. If a Response is not received by this date, the Tribunal shall proceed without further notice to Mr. Pacheco and may take any or all of the other steps set out in Rule 5.5. The Tribunal shall send a copy of this Interim Decision to Mr. Pacheco by regular mail and courier.

CONTINUATION OF PROCEEDINGS

12It appears that there may be an issue as to whether the stay pursuant to s. 69(1) of the BIA also stays the Application as against the individual respondents and whether the applicant must obtain leave of the Court with respect to his claim against the individual respondents. The Tribunal seeks submissions from the parties addressing this issue.

13The applicant is directed to serve and file submissions addressing the issue of the effect of the stay, pursuant to the BIA, with respect to the continuation of the proceedings as against the individual respondents within 14 days of the date of this Interim Decision. The individual respondents are directed to file submissions in reply within 21 days of the date of this Interim Decision. The parties may wish to have regard to the recent decision of the Tribunal in Rijal v. Distinctive Designs Furniture, 2009 HRTO 1337.

14The Tribunal reminds the parties that all written communications with the Tribunal should be copied to the other parties.

15I am not seized.