Chow v. PharmEng Technology, 2010 HRTO 1760

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jason Zhang Cheng Chow Applicant

-and-

PharmEng Technology (A Division of PE Pharma Inc.) Respondent

DECISION

Adjudicator: Eric Whist Date: August 26, 2010 Citation: 2010 HRTO 1760 Indexed as: Chow v. PharmEng Technology

1This is an Application filed on September 28, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges that the applicant was discriminated against in employment on the basis of disability when his group benefits were discontinued by the respondent during a company restructuring. This Interim Decision addresses whether the Application can proceed in light of the respondent’s apparent bankruptcy.

BACKGROUND

2The respondent failed to provide a Response to the Application within the time period required by the Tribunal’s Rules of Procedure. In an Interim Decision dated April 27, 2010, 2010 HRTO 918, the Tribunal directed the respondent to file a Response to the Application within seven days of the Interim Decision.

3On May 4, 2010, Alan Kwong, who identifies himself as the Managing Director of PharmEng Technology, a Division of PE Pharma Inc., wrote to the Tribunal indicating that the applicant’s benefits had ceased as of August 31, 2009, owing to a company restructuring. According to Mr. Kwong, the applicant had been an employee of Pharmeng Innovations, a division of the named respondent, PharmEng Technology Inc. (“PTI”), who had an accident in November 2007 and who subsequently received disability benefits from November 2007 until November 2008. The applicant apparently did not return to work after November 2008, but continued to receive the standard dental and medical benefits from PTI he had received prior to his injury. According to Mr. Kwong, these benefits continued until August 31, 2009, at which time all benefits provided by PTI ended owing to a company restructuring.

4Mr. Kwong states PTI filed a Notice of Intent with the courts to restructure which resulted in a new company, PE Pharma Inc. being formed in July 2009. PE Pharma Inc. apparently bought the assets of PTI (but not the company shares or liability). According to Mr. Kwong, PTI was declared bankrupt on January 29, 2010, and PE Pharma Inc., the successor organization, has no employment relationship with the applicant. Mr. Kwong states that any ongoing issues the applicant may have with his injuries or benefits should be taken up with the former insurance company and the trustees of PTI, which are A. Farber & Partners Inc. Mr. Kwong attaches to his letter several documents, including a Notice of Bankruptcy and First Meeting of Creditors signed by A. Farber & Partners Inc. on February 4, 2010, which states that PTI was deemed bankrupt on January 29, 2010.

5In an Interim Decision dated May 28, 2010, 2010 HRTO 1202, the Tribunal asked the applicant to provide written submissions within 14 days as to whether his Application could proceed or whether it was stayed in light of the information provided by Mr. Kwong. The Interim Decision goes on to explain that the Tribunal has determined in a number of decisions that section 69 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”), stays applications filed with the Tribunal from proceeding against a respondent who has been determined to be bankrupt under the BIA and that under these circumstances the Tribunal will deem an application to be abandoned unless an applicant has the stay lifted or has taken other steps to enable his or her Application to proceed.

6On June 4, 2010, the applicant wrote to the Tribunal to state that he and his lawyer had attended a mediation with his Long Term Disability insurance company and that they had reached a settlement. The applicant states that he believes he has information to show that he remains eligible to receive LTD benefits. The applicant asks for two or three weeks in which to submit documents from this settlement process and to provide them to the Tribunal. The Tribunal has had no further communication from the applicant.

DECISION

7The Application is dismissed as abandoned as the applicant has failed to indicate on what basis he can proceed with his Application. To restate the concern, the applicant has named PTI as the respondent in his Application. There appears to be evidence that PTI was declared bankrupt under the BIA on January 29, 2010. Applications filed with the Tribunal are stayed (prevented from proceeding) against a respondent who has been determined to be bankrupt under the BIA. Under these circumstances, an Application can only proceed if the applicant has the stay lifted by an order of the relevant Court or takes other steps to have his Application proceed which, in this case, might be expected to involve the trustees of the PharmEng Technology Inc. estate, A. Farber & Partners Inc. It is not clear how the settlement discussions the applicant may have been having with an insurance company allow the applicant to proceed with his Application against the respondent.

8It has also been over two months since the applicant indicated that he would provide a response to the Tribunal’s May 28, 2010 Interim Decision asking for submissions. He has not done so. Given that the only information the Tribunal has received from the applicant is a brief reference to settlement discussions with an insurance company, the Tribunal cannot conclude that the applicant can proceed with his Application and it is accordingly dismissed.