Human Rights Tribunal of Ontario
BETWEEN:
Pauline Smith Applicant
-and-
Smurfit-Stone Container Canada Inc. Respondent
INTERIM DECISION
Adjudicator: Kathleen Martin Date: April 21, 2009 Citation: 2009 HRTO 471 Indexed as: Smith v. Smurfit-Stone Container Canada
1This is an Application filed on December 23, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code"). The purpose of this Interim Decision is to amend the name of the respondent and address the respondent's request that the Application be stayed because the respondent is in protection pursuant to the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36 ("CCAA").
BACKGROUND
2The Application alleges discrimination and harassment in employment on the basis of sex. In particular, the applicant alleges that a co-worker used abusive and demeaning language to her; the plant manager demeaned and degraded her; and the plant manager and human resources manager failed to take appropriate action to respond to the incidents underlying her complaints. As a remedy, the applicant seeks general damages and three week's pay for time off due to the incidents.
3The applicant is a member of the Independent Paperworkers of Canada Local 949. In the Application, she states that the facts of the Application are part of a union grievance that is still in progress, but indicates that she is not seeking deferral.
4The respondent did not file a Response. Instead, counsel for the respondent wrote to the Tribunal advising as follows:
...Please be advised that the company is in CCAA protection. A copy of the Order staying all proceedings is attached. Accordingly, no Response will be filed at this time.
5The Court Order of January 26, 2009 referenced in Counsel's letter contains provisions staying any proceedings against a number of named entities including Smurfit-Stone Container Canada Inc.. Paragraph 14 of the Order provides as follows:
THIS COURT ORDERS that until and including February 25, 2009, or such later date as this Court may order (the "Stay Period"), no proceeding or enforcement process in any court or tribunal (each, a "Proceeding") shall be commenced or continued against or in respect of the Applicants, the Partnerships or the Monitor, or affecting the Business or the Property, except with the written consent of the applicable Applicant or Partnership, the DIP Agent and the Monitor, or with leave of this Court, and any and all Proceedings currently under way against or in respect of the Applicants, the Partnerships or affecting the Business or the Property are hereby stayed and suspended pending further Order of this Court.
6The Registrar of the Tribunal wrote to the parties seeking submissions on the respondent's position, the status of the Stay Order and the proper name of the respondent. With respect to the respondent's name, it appeared that the name provided by the applicant, Smurfit-Stone Containers Inc., did not correspond to any of the named affected parties governed by the terms of the Court's Order.
7The respondent has provided a copy of a Stay Extension Order dated February 24, 2009, which extends the terms of the Court's original Order including the above provision until April 30, 2009. In addition, the respondent states that that the company name as stated by the applicant in the Application is incorrect and that at all material times, the applicant's employer has been Smurfit-Stone Container Canada Inc., one of the applicants named in the Court's Order and Stay Extension Order.
8The applicant filed submissions requesting that the Application proceed as usual because the respondent "although it is in bankruptcy protection is still conducting business as normal". In this respect, the applicant states that the company sent their employees a letter stating that all benefits and work would continue as normal. The applicant filed no submissions in response to the Tribunal's inquiry regarding the name of the respondent although it is apparent from her submissions that she does not dispute that the respondent is in "protection".
DECISION
9Having regard to the submissions received, it appears that the name of the respondent is incorrect. The name of the respondent is therefore amended to Smurfit-Stone Container Canada Inc. and the style of cause is amended accordingly.
10With respect to the issue of the Stay, I have considered the applicant's submissions. However, the Court Order governs the current Application. While the Application was filed before the Order, the Order provides that no proceeding or enforcement process in any court or tribunal shall be commenced or "continued" against or in respect of the applicants (one of which is the respondent in this Application).
11This Application is therefore stayed as against Smurfit-Stone Container Canada Inc. pending leave of the Ontario Superior Court of Justice (Commercial List) or with the written consent of the applicable Applicant or Partnership, the DIP Agent and the Monitor, until May 1, 2009 or such later date as may be provided by the Court in any further order extending the terms of the Stay.
CONTINUATION OF PROCEEDINGS
12In the event the Stay expires on April 30, 2009, the respondent shall have 15 days to file their Response to the Application with the Tribunal. In the event that the Stay is extended, the Application will continue to be stayed as against Smurfit-Stone Container Canada Inc. until such later date as the Court may order, unless the applicant brings a motion in the Superior Court to lift the stay or otherwise meets the conditions set out in Court's Order within 60 days of April 30, 2009. If the Stay is extended beyond April 30, 2009, the applicant is directed to advise the Tribunal of her intentions in writing by June 1, 2009.
13The Tribunal draws the applicant's attention to the "Applicant's Guide" and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The Guide and links to other sources of information are available on the Tribunal's website, www.hrto.ca, or from the Registrar.
14I have not addressed the issue identified in the Application that the facts of the Application are part of a union grievance that is still in progress. This issue remains outstanding and may be addressed if and when the Application proceeds further.
15I am not seized.
Dated at Toronto, this 21st day of April, 2009.
"Signed By"
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Kathleen Martin Vice-chair