Seivewright v. Royal Crest Lifecare Group, 2009 HRTO 1760

Human Rights Tribunal of Ontario

BETWEEN:

Ellen Seivewright Applicant

-and-

Ernst & Young Inc., in its capacities as the court-appointed interim receiver and trustee in bankruptcy of the consolidated estates in bankruptcy of The Royal Crest Lifecare Group Inc., et al., Leonie Maguire, Marci Fulford and Chris Robinson Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: October 23, 2009 Citation: 2009 HRTO 1760 Indexed as: Seivewright v. Royal Crest Lifecare Group

1This is an Application filed April 21, 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 in employment against Yorkview Life Care and three individual respondents.

2On behalf of the organizational respondent, the Tribunal received a Response from a court-appointed interim receiver and trustee in bankruptcy (the "Receiver and Trustee") of the consolidated estates in bankruptcy of The Royal Crest Lifecare Group Inc., and others ("Royal Crest"), which includes the Yorkview Lifecare facility ("Yorkview") at which the applicant worked. The Response indicated that Yorkview does not exist as a separate legal entity and the applicant was employed by Royal Crest. The style of cause has been amended to reflect the name of the organizational respondent provided in the Response.

3The Receiver and Trustee submits that, pursuant to section 69.3(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the "BIA"), all proceedings against Royal Crest and its property, assets and undertakings, including Yorkview, are stayed. It is also submitted that, given the applicant is seeking a financial remedy, this stay extends to both the organizational and the individual respondents. Further, pursuant to section 215 of the BIA, no action lies against the Receiver and Trustee except "by leave of the court".

4The Receiver and Trustee also submits that, pursuant to a Receivership Order of the Superior Court of Justice (the "Court"), no action lies against any of the respondents, except by leave of the Court. Accordingly, it is submitted that the Application is stayed and cannot be continued unless and until leave of the Court is obtained.

5The Receiver also submits, among other things, that the Application has been dealt with in another forum, namely a grievance that was resolved, and the allegations are out of time under the Code.

6The applicant did not file a Reply to the Response filed on behalf of Royal Crest and the time for doing so has passed.

7In the circumstances, the applicant is directed to advise the Tribunal if she intends to pursue this Application, in writing, within 20 days of the date of this Interim Decision. If the applicant intends to seek leave of the Court to lift the stay, she must do so within 60 days of the date of this Interim Decision. If the applicant does not advise the Tribunal of her intentions within 20 days of the date of this Interim Decision, the Application may be dismissed as abandoned.

8There is a question as to whether the individual respondents have received notice of these proceedings. The applicant provided the organizational respondent's address as the address for service for all of the respondents and the Tribunal sent Notices of Application to the individual respondents at that address. None of the individual respondents provided a Response to the Application.

9Although the Tribunal's correspondence was not returned, it is not clear if the individual respondents have received notice of the Application. Should the applicant intend to pursue this Application as against the individual respondents, the applicant must also, within 20 days of the date of this Interim Decision, provide to the Tribunal, in writing, alternate addresses for service of the individual respondents, or otherwise take appropriate steps pursuant to the Tribunal's Rules of Procedure to ensure that the individual respondents can be provided with notice of the proceedings.

10I am not seized.