Human Rights Tribunal of Ontario
B E T W E E N:
Ellen Seivewright Applicant
-and-
Ernst & Young Inc., in its capacities as the court-appointed interim receiver and trustee in bankruptcy of the consolidated estates in bankruptcy of The Royal Crest Lifecare Group Inc., et al., Leonie Maguire, Marci Fulford and Chris Robinson Respondents
A N D B E T W E E N:
Ellen Seivewright Applicant
-and-
Ernst & Young Inc., in its capacities as the court-appointed interim receiver and trustee in bankruptcy of the consolidated estates in bankruptcy of The Royal Crest Lifecare Group Inc., et al., Christine Maragh, Marci Fulford and Linda Gray Respondents
INTERIM DECISION
Adjudicator: Brian Eyolfson
Indexed as: Seivewright v. Royal Crest Lifecare Group
INTRODUCTION
1The applicant filed an Application (File Number 2009-02052-I) on April 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment against Yorkview Life Care and three individual respondents (the “original Application”).
2On September 3, 2009, the applicant filed a second Application (File Number 2009-03406-I) under section 34 of Part IV of the Code, alleging reprisal or threat of reprisal in employment, and naming Yorkview Life Care and one of the same individual respondents as in the original Application, and two other individual respondents (the “reprisal Application”).
3On behalf of the organizational respondent, the Tribunal received Responses to the Applications, including Requests for Early Dismissal, from a court-appointed interim receiver and trustee in bankruptcy (the “Receiver”) of the consolidated estates in bankruptcy of The Royal Crest Lifecare Group Inc., and others (“Royal Crest”), which includes the facility at which the applicant worked. In an earlier Interim Decision with respect to the original Application, 2009 HRTO 1760, the Tribunal amended the style of cause to reflect the name of the organizational respondent provided in the Response. The Tribunal similarly amends the style of cause in the reprisal Application.
PARTIES’ POSITIONS
4In its Responses, the Receiver submitted, among other things, that, pursuant to section 69.3(1) of the Bankruptcy and Insolvency Act (the “BIA”), all proceedings against Royal Crest and its property, assets and undertakings were stayed. It was also submitted that the stay extends to both the organizational and the individual respondents and that, pursuant to section 215 of the BIA, no action lies against the Receiver except “by leave of the court”. These sections of the BIA provide as follows:
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.
- Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee [in bankruptcy] with respect to any report made under, or any action taken pursuant to, this Act.
5The Receiver also submitted that, pursuant to a Receivership Order of the Superior Court of Justice, no action lies against any of the respondents, except by leave of the Court. Accordingly, it was submitted that the Applications are stayed and cannot be continued unless and until leave of the Court is obtained. It was also submitted that the reprisal Application should be dismissed as it has been filed in breach of a Court-ordered stay. Paragraph 8 of the Receivership Order in question states, in part, as follows:
THIS COURT ORDERS that no demands, actions, motions, applications, steps, registrations, perfections, administrative proceedings, self-help remedies, grievances, or any other acts, proceedings or private remedies whatsoever in respect of the Property, or business conducted thereon by the Bankrupt or against the Bankrupt or the Receiver….or any of the Receiver’s agents…shall be taken or continued against the Bankrupt or the Receiver without prior written consent of the Receiver or leave of this Court…(emphasis added)
6In response to the above-referenced Interim Decision concerning the original Application, and Tribunal correspondence dated March 2, 2010 concerning the reprisal Application, the applicant confirmed that she intended to pursue her Applications as against the individual respondents. The applicant provided submissions in reply to the respondent’s Responses and Requests for Early Dismissal on March 9 and July 7, 2010.
7With respect to the original Application, the applicant submits, among other things, that section 69.3(1) of the BIA does not preclude the Application from proceeding, as the Application is not “provable in bankruptcy”, and that section 215 of the BIA does not apply to an Application under the Code.
8With respect to