Assunta Young v. Marathon Pulp Inc. and Eugene Reid, 2009 HRTO 800

Human Rights Tribunal of Ontario

Between: Assunta Young, Applicant -and- Marathon Pulp Inc. and Eugene Reid, Respondents

Interim Decision

Adjudicator: Naomi Overend Date: June 9, 2009 Citation: 2009 HRTO 800 Indexed as: Young v. Marathon Pulp

Written Submissions By: Assunta Young, Applicant ) Andrew Pinto, Counsel Marathon Pulp Inc., Respondent ) Kevin D. MacNeill, Counsel Eugene Reid, Respondent ) Robert Healey, Counsel

1The applicant filed an Application on February 9, 2009 under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the "Code"), alleging discrimination in employment by the named respondents. At the same time, she filed a Request to Expedite Proceedings. That Request remains outstanding because, in the interim, one of the respondents, Marathon Pulp Inc. ("Marathon"), initiated proceedings under s. 54.1 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA"). This, in turn, prompted two further Requests for Orders from the applicant.

2This Interim Decision addresses the following outstanding issues: (1) the Request to withdraw against Bobbi-Jo Schwantz and Kathy Germain; (2) the Request to amend the Application, (3) the impact of the assignment in bankruptcy on the Application, (4) the Request to expedite these proceedings, (5) Marathon's failure to file a Response to the Application and (6) the Request for production of documents.

Background

3After being served with the Application and Request, Marathon filed a Response in which it opposed the Request to Expedite on the basis that it had filed a Notice of Intention to Make a Proposal ("Notice of Intention") under the BIA on February 13, 3009, prior to being served with the Application. Marathon stated that it was its understanding that this Notice of Intention would operate as a stay of this Application.

4In an Interim Decision, 2009 HRTO 264, issued on March 9, 2009, the parties were asked to make submissions on the effect of the Notice of Intention on these proceedings and the Request to Expedite. Marathon and Eugene Reid filed further submissions on this issue, while the applicant filed two Requests outlined below.

5The first was a Request to Withdraw against two of the four named respondents. On March 16, 2009, counsel for the applicant wrote to the Tribunal to advise that his client had settled with these two individuals, and enclosed the Request to Withdraw. The second Request, submitted on behalf of the applicant on March 23, 2009, was a Request for Order During Proceedings seeking to amend her Application to, among other things, delete the request for monetary remedies against Marathon Pulp ("Request to amend"). These two Requests, in effect, formed the applicant's response to the issues set out in the Interim Decision.

6Counsel for Eugene Reid wrote to the Tribunal on April 6, 2009 asking for an extension of time to file his Response to the Request to amend until after the release of the decision on the stay of proceedings. This request was denied, but Counsel was given an extension to May 11, 2009 to file his Response.

7In addition to the above, Eugene Reid (prior to retaining counsel) filed a Request for Order During Proceedings, asking for production of certain documents by the applicant.

Withdrawal Against Two of the Respondents

8As described above, on March 16, 2009, counsel for the applicant advised the Tribunal that his client had settled against two of the named personal respondents, Bobbi-Jo Schwantz and Kathy Germain. Both individuals were management employees with Marathon. He noted that his client, Marathon and the two affected respondents jointly request the Tribunal to finally dispose of the Application as against them, and submitted a Request to Withdraw.

9It is not necessary for the Tribunal to grant leave to withdraw as neither of the two individuals has filed a Response to the Application (see Rule 10.5 of the Rules of Practice and Procedure). Accordingly, the style of cause is amended to reflect the fact that Bobbi-Jo Schwartz and Kathy Germain are no longer respondents to this Application.

Amendment of the Application

10The applicant seeks to amend her Application to remove the paragraphs relating to her request for monetary damages from Marathon (paragraphs 91-98 of the Schedule "A" to her Application), but continues to seek the enumerated non-monetary remedies against Marathon. In her Request to amend, the applicant specifies that she is continuing to seek $10,000 in general damages from Eugene Reid.

11Given Marathon has entered bankruptcy protection the applicant states she no longer wishes to pursue damages that might be categorized as a "claim provable in bankruptcy." She states her primary concern is to be free from the reprisals she alleges have occurred at the workplace, and to do that it is not necessary to pursue the monetary remedies.

12Neither Marathon nor Mr. Reid have responded to the Request to amend. In the circumstances, the Request is granted and the Application amended accordingly.

13In addition, the applicant advises her Application incorrectly identifies Mr. Reid as President of Local 548 of the Teamster's Union. He is the President of Local 548 of the United Steelworkers and the Application is amended to reflect this.

Impact of the Assignment of Bankruptcy on These Proceedings

14As noted above, in response to the applicant's Request to Expedite, Marathon provided the Tribunal with a copy of a Notice of Intention, dated February 13, 2009, under the BIA. Marathon took the position that the Notice of Intention triggered the stay provisions under s. 69(1) of the BIA. The parties were asked to provide submissions on this issue.

15Marathon submits that matters against it were stayed, but took no position on the matter whether the proceedings were stayed against the individual respondents. Mr. Reid took the position that the matter was not stayed as against any of the respondents.

16Both sets of submissions were filed before the applicant filed the Request to amend. Marathon did not file further submissions on whether the proposed amendments altered its position that the Application was stayed by the BIA.

17Subsequent to the filing of the parties' respective submissions, Marathon submitted a copy of a Certificate of Assignment, dated March 17, 2009, which states in part:

I, the undersigned, Official Receiver in and for this bankruptcy district, do hereby certify that:

− a notice of intention in respect of the aforementioned debtor was filed under section 50.4 of the Bankruptcy and Insolvency Act; − the debtor has failed to file a cash flow statement or a proposal within the provided period following the filing of the notice of intention or within any court granted extension and is thereupon deemed to have made an assignment.

18The applicable stay provisions of the BIA state:

69 (1) Subject to subsections (2) and (3) and sections 69.4 and 69.5 on the filing of a notice of intention under section 54.1 by an insolvent person,

(a) No creditor has any remedy against the insolvent person or the insolvent person's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy,

...

69.3 (1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy. (emphasis added)

19Since the applicant is no longer seeking any monetary remedies against Marathon, she is not a "creditor" and no longer has a "claim provable in bankruptcy" as those terms are used in ss. 69(1) and 69.3(1). Accordingly, her Application is not stayed by the operation of the BIA.

Request to Expedite

20The applicant's original Request to Expedite was not decided at the outset because it was necessary to first determine whether her Application was stayed by Marathon's initiation of proceedings under the BIA. The applicant explains the basis for her Request to Expedite as follows:

[2] Without an Expedited Process my 34 year employment with Marathon Pulp Inc. will almost certainly be terminated in the near future. There is a narrow window of opportunity now, while I am on sick leave, to avoid a scenario where I return to work and am subjected to severe reprisals up to and including dismissal. An Expedited Process would allow the Tribunal to craft a remedy that would allow me to return to my job in a regulated and supervised setting such that no further and/or escalated reprisals can be made against me.

21It is not clear that there is now a job to which the applicant might return. In his Response, Eugene Reid indicates that Marathon has closed its operations and laid off all its employees. He indicated that he was laid off on March 6, 2009 while his wife was laid off a week later. In addition, it would appear from the March 17, 2009 Certificate of Assignment, that Marathon is now bankrupt.

22Before the Tribunal can decide the issue of urgency, the parties must provide a factual update concerning whether Marathon has permanently ceased operations at its facility and/or whether the applicant's position has been eliminated.

Failure to File a Response

23The deadline for filing Responses to the Application was March 24, 2009. The parties were advised in the Interim Decision to make any request for an extension of time for the filing of their respective Responses to the Registrar if they so required one. Eugene Reid made such a request, but Marathon has never sought such an extension. As of the date of this Interim Decision, Marathon has still not filed a Response to the Application.

24Failure to file a Response or participate in a Tribunal proceeding may lead to orders against respondents without their participation. The respondent's attention is drawn to Rule 5.5 of the Tribunal's Rules of Procedure, which reads as follows:

5.5 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.

25While it is perhaps understandable that Marathon was awaiting the outcome of this Interim Decision, it must file a Response by June 17, 2009 if it wishes to participate in this proceeding.

Request for Production

26Eugene Reid filed a Request for Order During Proceedings (Form 10), asking for production of the documents listed in Schedule "A" of the Application, as well as for additional phone records. He indicated he required these documents in order to file his Response. Despite the fact that there has been no ruling on this Request, Eugene Reid has since filed his Response to the Application. In the event that this matter proceeds to a hearing, Rule 16 requires the parties to provide to each other a copy of all arguably relevant documents in their possession, except documents for which privilege is claimed. If the documents requested are not produced at that juncture, he can renew his Request.

27This Request for production of documents is dismissed.

28I am not seized of this matter.