HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Denver Sanmuganathan
Applicant
-and-
SKD Automotive Group, Milton Division
Respondent
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Sanmuganathan v. SKD Automotive Group
1The applicant, Denver Sanmuganathan, alleges in his Application that the respondent, SKD Automotive Group, Milton Division, discriminated against him in employment on the basis of disability contrary to the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Interim Decision addresses a Request for an Order During Proceedings (the “Request”) made by the applicant to have his Application proceed. The Application has been stayed as a result of the respondent filing for protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended (“CCAA”).
Background
2The Application was filed with the Tribunal on November 24, 2008. On January 23, 2009, counsel for the respondent wrote to the Tribunal to state that the respondent had filed for protection under the CCAA and that the Superior Court of Justice (the “Court”) had stayed any proceedings against the respondent until February 21, 2009 or until such later date as the Court might order. Counsel for the respondent submitted that unless this or any further order staying proceedings against the respondent came to an end or was lifted by the Court the respondent would not take any further action in response to the Application. The Tribunal invited the applicant to provide submissions in response to the respondent’s position but he did not.
3Counsel for the respondent wrote to the Tribunal on February 26, 2009 to indicate that the respondent was filing a motion with the Court to seek a short extension of the order staying proceedings. Counsel for the respondent wrote again on May 29, 2009 to indicate that a stay of proceedings against the respondent had been extended by the Court until June 10, 2009. On August 24, 2009, counsel for the respondent wrote the Tribunal to state that the respondent was in receivership. Counsel attached a copy of the Court’s Receivership order dated June 11, 2009 and noted that paragraphs 7-9 of the Receivership order specified that all proceedings against the respondent were stayed pending further court order.
4On April 23, 2010, the applicant filed his Request with the Tribunal stating that he wanted to proceed with his Application given that the respondent was now bankrupt and was in the process of settling with secured creditors. The applicant provided with his Request a letter dated April 21, 2010 sent to him by counsel for the Court-appointed receiver, RSM Richter Inc. (the “Receiver”), indicating that the Receiver was seeking a motion for an order to distribute funds to a number of specific parties with claims against the respondent and that there were further funds available to satisfy other eligible claims. The letter indicates that the applicant has filed a proof of claim with the Receiver pursuant to the Court-approved procedure.
Decision
5The Request by the applicant to have his Application proceed is dismissed. The Tribunal is bound by the Receivership order of the Superior Court of Justice, which prohibits this Application from proceeding unless the applicant first obtains leave (permission) of the Court for it to do so. Paragraphs 7 and 8 of the Receivership order issued by the Court state:
THIS COURT ORDERS that no proceeding or enforcement process in any court or tribunal (each a “Proceeding”) shall be commenced or continued against the receiver except with the written consent of the receiver or with leave of this Court.
THIS COURT ORDERS that no proceeding against or in respect to the Debtor or the Property shall be commenced or continued except with the written consent of the Receiver or with leave of this Court and any and all proceedings currently under way against or in respect of the debtor or the Property are hereby stayed and suspended pending further order of this Court.
6As indicated in the April 21, 2010 letter, the applicant may have registered a financial claim against the respondent with the Receiver and a distribution of funds may occur. However, this does not mean that the Tribunal has the authority to proceed with the Application. If the applicant wishes to pursue the Application he must bring a motion in the Court to lift the stay. Alternatively, the applicant could attempt to reach an agreement with the Receiver in relation to his claim.
7The 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.
8I am not seized of this matter.
Dated at Toronto, this 1st day of June, 2010.
“Signed by”
Eric Whist
Vice-chair