Jozo Nikic v. James Kinnaird, 2009 HRTO 1866

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jozo Nikic

Applicant

-and-

James Kinnaird

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 4, 2009

Citation: 2009 HRTO 1866

Indexed as: Nikic v. Kinnaird

1This Application was filed with the Tribunal on December 30, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The Case Resolution Conference (“hearing”) is scheduled for November 25, 2009. The purpose of this Interim Decision is to address the impact of the bankruptcy of the institutional respondent and the personal respondent Snowdy.

2The original complaint was filed with the Ontario Human Rights Commission on April 13, 2005 against Epic Protection Group Ltd. (the institutional respondent), James Kinnaird and Derrick Snowdy. The applicant alleges that the respondents failed to accommodate his family status and disability related needs and instead terminated his employment.

3The institutional respondent filed an assignment in bankruptcy in September 2007. The Trustee in bankruptcy advised the Tribunal that a stay of proceedings was in effect pursuant to section 69.3 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”), although in the opinion of the Trustee, the stay had no effect on the proceedings against the personal respondents.

4On August 28, 2008, the respondent Snowdy filed an assignment in bankruptcy. The estate administrator advised the Tribunal that a stay of proceedings was in effect pursuant to section 69.3 of the BIA, although in the opinion of the Trustee, the stay had no effect on the proceedings against Mr. Kinnaird.

DECISION

5The respondent Kinnaird has requested that the Tribunal also refuse to proceed against him on the basis that the applicant is obliged to have the stay lifted against the bankrupts before proceeding against him.

6The applicant has not made any attempt to have the stay lifted against the institutional respondent or Mr. Snowdy under section 69.4 of the BIA,

7However, in my view the stays under the BIA operate only to stay the proceedings against the bankrupts, not against the other respondents. If Mr. Kinnaird wishes to have the stay lifted so that he may make a claim over against the other respondents, he is entitled to do so.

8Similarly, the applicant may apply to the Bankruptcy Court to have the stays lifted if he wishes to proceed against the institutional respondent or the respondent Snowdy.

9The parties are directed to advise the Tribunal within ten days of the date of this Interim Decision whether they intend to seek to lift the stay against the institutional respondent and/or the personal respondent Snowdy. If so, the hearing will be adjourned and the parties given 30 days to take the necessary steps.

10If not, the hearing will proceed as scheduled on November 26, 2009.

11There remains a serious issue whether Mr. Kinnaird will be found to have personally violated the applicant’s rights, whether he was acting in the course of his employment at the time, and, if so, whether it would be appropriate to order a remedy against him personally. However, these are matters that are best addressed at the Case Resolution Conference scheduled for November 25, 2009. I note that neither party has complied with their obligations to file statements of additional facts and remedy, if any and make disclosure of any documents they intend to rely upon. They should do so immediately, and the consequence of the late delivery of these materials can be addressed at the hearing. Further, the deadline for filing witness lists and statements of witnesses’ intended evidence is November 5, 2009.