Human Rights Tribunal of Ontario
Between:
Lawrence Clooney Applicant
-and-
Koskie & Minsky LLP Respondent
Interim Decision
Adjudicator: Michelle Flaherty Date: March 30, 2010 Citation: 2010 HRTO 702 Indexed as: Clooney v. Koskie & Minsky LLP
1The applicant filed an Application under s. 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"), alleging discrimination based on disability in the context of a contract. In essence, the applicant alleges that the respondent entered into a settlement agreement involving the applicant without consulting him and in violation of his rights under the Code.
2The respondent argues that the Application should be dismissed or, in the alternative, deferred pending the outcome of court proceedings. The respondent is court-appointed counsel for a representative plaintiff in a Companies Creditors Arrangements Act, R.S.C. 1985, c C-36 proceeding ("CCAA Proceeding"). It argues that the applicant is prevented from filing the Application pursuant to a court order dated July 14, 2009; that the respondent is indemnified pursuant to a court order dated July 30, 2009; and that, in any event, the issues raised in the Application are being addressed by the court in the context of the CCAA Proceeding.
3The applicant filed a Reply. I understand him to indicate that he wishes to await the court's determination of a proposed settlement agreement in the CCAA Proceeding before pursuing the Application.
Background
4The applicant is an employee of Nortel Companies and is currently in receipt of or eligible for long-term disability benefits.
5Nortel Companies has brought an application under the CCAA to facilitate its reorganization for the benefit of creditors.
6A court order made on January 14, 2009 in the context of the CCAA Proceedings has ordered a stay of all proceedings in respect of Nortel companies and the court-appointed Monitor (Ernst & Young). The stay period was extended to April 23, 2010.
7By court order dated July 30, 2009, Sue Kennedy was appointed representative of employees of Nortel who are long-term disability beneficiaries ("LTD beneficiaries"). By the same order, Koskie Minsky LLP was appointed counsel for Ms. Kennedy and all LTD beneficiaries in the CCAA Proceeding. This group includes the applicant.
8The July 30, 2009 order contains the following provision:
THIS COURT ORDERS that the Representative and Koskie Minsky LLP shall have no liability as a result of their respective appointment or the fulfilment of their duties in carrying out the provisions of this Order from and after January 14, 2009 save and except for any gross negligence or unlawful misconduct on their part.
9Sue Kennedy, on behalf of the LTD beneficiaries, reached a proposed settlement agreement. All LTD beneficiaries were notified of the proposed settlement and the motion for settlement approval, scheduled before the court on March 3, 2010. LTD beneficiaries were notified of their right to attend and oppose the proposed settlement.
10The applicant filed a notice indicating that he is represented by counsel and that he intends to appear at the motion for settlement approval.
Decision
11It is unclear to me that the January 14, 2009 court order prohibits proceedings against the respondent. I understand it to mean that no proceedings may be commenced or continued in respect of Nortel Companies or the Monitor, Ernst & Young. However, based on the materials before me, I am not (at this stage of the proceedings) satisfied that the applicant is precluded from bringing an application against the respondent in this matter. Accordingly, I am not prepared to dismiss the Application on this basis.
12Similarly, the clause cited at para. 8 does not, in my view, constitute a reason for dismissing the Application. While the clause may provide a response to the allegations contained in the Application, it does not warrant the early dismissal of the Application.
13The parties have agreed that a deferral of the Application is appropriate in the circumstances. Based on the parties' position and the materials before me, I agree that a deferral is appropriate.
14Accordingly, I order that the Application be deferred pending the court's determination of the proposed settlement agreement.
15The Tribunal directs the parties' attention to Rules 14.3 and 14.4, which outline the procedure by which a party may request that the Application proceed.
16I am not seized of this matter.
Dated at Toronto, this 30th day of March, 2010.
"Signed By"
__________________________________
Michelle Flaherty Vice-chair