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Martin v. Trailmobile Canada Limited, 2009 HRTO 873 — HRTO | minicounsel | minicounsel

June 17, 2009

Martin v. Trailmobile Canada Limited, 2009 HRTO 873

Case Summary

The applicant filed a human rights application against a corporate respondent and two individual respondents. The corporate respondent filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act, triggering an automatic stay of proceedings against it. The individual respondents failed to file a response. The Tribunal confirmed the stay against the corporate respondent and ordered its counsel to confirm whether the individual respondents were served at the business address or to provide their last known addresses.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arthur Martin

Applicant

-and-

Trailmobile Canada Limited, John Pacheco and Ivan Sustark

Respondents

INTERIM DECISION

Adjudicator: David A. Wright

Date: June 17, 2009

Citation: 2009 HRTO 873

Indexed as: Martin v. Trailmobile Canada

WRITTEN SUBMISSIONS BY

Arthur Martin, Applicant ) Kate Sellar, Counsel

Trailmobile Canada Limited ) Melodie D. Eng, ) Counsel

[1] This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”) against Trailmobile Canada Limited (“Trailmobile”), John Pacheco and Ivan Sustark. The Tribunal did not receive a Response after the Application was delivered to the respondent. By Interim Decision dated May 4, 2009 [2009 HRTO 553](https://www.minicounsel.ca/hrto/2009/553), the respondents were directed to file a Response by May 15, 2009 together with an explanation of why the Response was not filed in accordance with the deadline.

[2] None of the respondents filed a Response, but counsel wrote to the Tribunal on behalf of Trailmobile advising that it had filed a Notice of Intention to Make a Proposal under s. 50.4(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 and attaching the Certificate of Filing of Notice of Intention to Make a Proposal. It states that pursuant to s. 69(1) of the Bankruptcy and Insolvency Act, all proceedings against Trailmobile are stayed. No one responded on behalf of the individual respondents, John Pacheco and Ivan Sustark.

[3] The Registrar wrote to the parties inviting counsel for the applicant to make submissions on the next steps in light of the information in the letter from Trailmobile’s counsel. Counsel for the applicant advised the Tribunal that she has no additional information or argument that would affect the Tribunal’s decision on whether there is a stay against Trailmobile. She stated that the applicant intends to proceed against the individual respondents and filed a Request for Order that the respondent advise the Tribunal (1) whether Trailmobile is still in operation and therefore whether the individual respondents were served at Trailmobile’s address; and (2) in the event that Trailmobile cannot confirm service to the individually-named respondents, confirm the last known addresses of Mr. Pacheco and Mr. Sustark to facilitate delivery of the Application. None of the respondents responded to this request.

[4] I am satisfied that proceedings against Trailmobile are stayed pursuant to s. 69(1) of the Bankruptcy and Insolvency Act and the Application may not proceed against it at this time. I also agree that, in the circumstances, the type of steps requested by the applicant are appropriate.

[5] Accordingly, I order as follows, pursuant to Rule 1.7(p) of the Tribunal’s Rules. Counsel for the respondent shall, within five days of this Interim Decision, provide the Registrar with a letter, copied to the other parties, stating whether the Notices of Application sent by the Tribunal to Mr. Pacheco and Mr. Sustark at the respondent’s business address were provided to them. If counsel is unable to confirm that Mr. Pacheco and Mr. Sustark were provided with the Notices of Application, counsel shall advise why and provide the Tribunal with their last known addresses, as shown in the business records of Trailmobile.

[6] The attention of Mr. Sustark and Mr. Pacheco is drawn to the fact that the Application is not stayed as against them. An application to the Tribunal starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a response or participate in a Tribunal proceeding may lead to orders against individual respondents without their participation. The respondents’ 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.

Mr. Sustark and Mr. Pacheco must immediately comply with the Tribunal’s previous order that they file a Response.

[7] I am not seized.

Dated at Toronto, this 17^th day of June, 2009.

“Signed By”

David A. Wright

Vice-chair