McDonald v. Bruce Bissell Buick Pontiac Limited, 2009 HRTO 984

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wayne McDonald

Applicant

-and-

Bruce Bissell Buick Pontiac Limited

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: July 7, 2009 Citation: 2009 HRTO 984 Indexed as: McDonald v. Bruce Bissell Buick Pontiac

WRITTEN SUBMISSIONS BY

Wayne McDonald, Applicant ) Kate Sellar, Counsel Bruce Bissell Buick Pontiac Limited ) Paul Mott, Representative and Sherry Evans, Respondents )

INTRODUCTION

1The purpose of this Interim Decision is to address various issues related to the bankruptcy of the corporate respondent.

BACKGROUND

2The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on February 11, 2009. The respondents filed a Response on April 8, 2009, which stated, in part, that General Motors and its dealers were under severe financial pressure and there was no guarantee that the corporate respondent would continue to operate in its present form.

3The respondents then sent the Tribunal a letter dated May 8, 2009, which stated that effective April 30, 2009 the corporate respondent had ceased all operations, terminated the employment of all employees, and was placed into receivership, and that the applicant did not have a claim against any of its assets.

4The applicant filed a Request for an Order during Proceedings on May 12, 2009, which requested that the applicant’s time to file his Reply to the Response be extended until such time that the Tribunal makes a final order with respect to the ability of the applicant to proceed against the corporate respondent. The respondents did not file a Response to the Request.

5The Tribunal’s Registrar sent the parties a letter dated May 14, 2009, which requested that the respondents file court documents related to the receivership, and that the applicant provide submissions with respect to the next steps that should be taken in relation to the Application.

6The respondents filed a Request for an Order during Proceedings on May 20, 2009, which requested that (a) Sherry Evans be removed as an individual respondent, and (b) the Tribunal dismiss the Application because the corporate respondent filed for bankruptcy and does not have any unencumbered assets. The corporate respondent attached a Form 67 (Notice of Bankruptcy and First Meeting of Creditors), which was signed by the trustee of the estate of the corporate respondent, and stated that the corporate respondent filed an assignment on May 1, 2009 following which the trustee was appointed by the official receiver.

7The applicant did not file a Response to the Request, but sent the Tribunal a letter dated May 27, 2009, which stated that (a) the applicant agrees to withdraw his Application against Ms. Evans, and (b) he has no additional information or arguments with respect to the bankruptcy of the corporate respondent.

ANALYSIS AND ORDERS

8Section 69 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended, (the “BIA”) provides that 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.

9In my view, the Code proceedings against the corporate respondent are stayed pursuant to s. 69 of the BIA, and the Application may not proceed against it at this time. The applicant’s written submissions do not address whether he intends to seek to lift the stay or take other steps to enable his Application to proceed.

10The 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.

11The applicant’s Request to extend the time to file his Reply to the Response is granted. If he is successful in obtaining a lifting of the stay or in taking some other step that enables his Application to proceed, he shall have seven days from that date to file his Reply.

12The respondents’ request to remove Ms. Evans as an individual respondent to the Application is also granted and the style of cause is amended accordingly.

13I am not seized of this matter