HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Lachance
Applicant
-and-
Ernst & Young, Inc. in its capacity as Bankruptcy Trustee of the consolidated estates in bankruptcy of the Royal Crest Lifecare Group Inc.,
Extendicare (Canada) Inc., Stephanie Zajczenko-Opdam and Peter Connick
Respondents
INTERIM DECISION
Adjudicator: David A. Wright
Date: March 18, 2009
Citation: 2009 HRTO 315
Indexed as: Lachance v. Royal Crest Lifecare Group Inc.
WRITTEN SUBMISSIONS BY
David Lachance, Applicant ) On His Own Behalf
Ernst & Young, Inc. in its capacity )
as Bankruptcy Trustee of the consolidated )
estates in bankruptcy of the Royal Crest )
Lifecare Group Inc., ) Sven Poysa, Counsel
Extendicare (Canada) Inc., )
Stephanie Zajczenko-Opdam and Peter Conick , )
Respondents )
[1] The applicant has filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging that he was discriminated against on the basis of disability with respect to employment. The allegations relate to his employment at a facility in Stoney Creek, Ontario.
[2] Ernst & Young Inc. (“EYI”) is the court-appointed Receiver and Bankruptcy Trustee for Royal Crest, a company that previously owned the long-term care facility where the applicant worked. EYI has been Interim Receiver in November of 2002 and Bankruptcy Trustee and Receiver in January of 2003. It operates the facility pursuant to a January 17, 2003 order of the Superior Court of Justice. Extendicare manages the facility for EYI.
[3] The respondents submit that this Application may not proceed unless the applicant obtains first obtains leave of the bankruptcy court. They cite s. 215 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended and paragraph 8 of the Order of Mr. Justice Farley of the Superior Court of Justice, dated January 17, 2003 (contained at Tab 3 of the Response) which reads as follows:
THIS COURT ORDERS that no demands, actions, motions, applications, steps, registrations, perfections, administrative proceedings, self-help remedies, grievances, or any other acts, proceedings or private remedies whatsoever in respect of the Property or businesses conducted thereon by the Bankrupt or against the Bankrupt or the Receiver or Extendicare (Canada) Inc. (the “Operator”) or any of the Receiver’s agents including, without limitation… the commencement or continuation of any proceedings under any Labour or Employment Laws (as hereinafter defined), shall be taken or continued against the Bankrupt or the Receiver without the prior written consent of the Receiver or leave of this Court being first obtained upon not less than seven days’ notice to the Receiver…
“Labour and Employment Laws” is defined in para. 12 of the Order to include the Code.
[4] The Tribunal is satisfied that the receivership order contains provisions staying any proceedings against the respondents. This Application is therefore stayed pending leave of the Ontario Superior Court of Justice (Commercial List) or consent of the Receiver.
[5] The applicant argued that the respondents are hiding behind the laws of bankruptcy and urged the Tribunal not to permit this. The Tribunal is bound by the order of the Superior Court of Justice, which prohibits this Application from proceeding unless the applicant has first obtained leave (permission) of the Court for it to do so.
[6] If the applicant wishes to pursue the Application he must either bring a motion in the Superior Court to lift the stay or reach an agreement with the Receiver with respect to his claim within 60 days of the date of this Interim Decision.
[7] The applicant is directed to advise the Tribunal of his intentions in writing within 30 days of the date of this Interim Decision. If the applicant fails to do so the Tribunal may deem the Application abandoned and close its file.
[8] The names of the respondents are corrected as set out in the title of proceedings.
[9] I am not seized of this Application.
Dated at Toronto, this 18th day of March, 2009.
“Signed by”
David A. Wright
Vice-chair