HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Howard Jackson
Complainant
-and-
Collins & Aikman Plastics Ltd.
Respondent
InTERIM DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Jackson v. Collins & Aikman Plastics
Introduction
1This Interim Decision deals with the status of this complaint in light of the settlement with the individual respondents and the Bankruptcy of the corporate respondent.
2The complaint was referred by the Ontario Human Rights Commission (the “Commission”) to the Human Rights Tribunal of Ontario (the “Tribunal”). The complaint named the complainant’s employer, Collins & Aikman Plastics Limited (“C & A” or the”corporate respondent”), as well as four of C & A’s employees as respondents.
3As discussed in more detail below, on June 19, 2007 C & A obtained protection from its creditors pursuant to the Companies’ Creditors Arrangement Act (“CCAA”).
4On or about July 10, 2009 the Commission reached an agreement with the individual respondents and this complaint has not proceeded against them.
5On December 4, 2009 the Tribunal wrote to the complainant and the corporate respondent asking that the parties, including the Commission, to clarify the status of this matter. The complainant responded on December 5, 2009 by advising that he was seeking a hearing before the Tribunal.
6On June 21, 2010 counsel for C & A advised both the Tribunal and the complainant that C & A had made an assignment in bankruptcy on April 9, 2010 and that the complainant could make a claim in the bankruptcy as an unsecured creditor.
7At the Pre-hearing Conference Call on August 26, 2009 the Commission sought leave to withdraw from the proceedings which was granted by Vice-chair Reaume on that date and confirmed in writing by the Registrar–Transition on December 24, 2009.
Background
8This is one of those matters that finds itself at the complex intersection of human rights law, in this case under the Ontario Human Rights Code, R.S.O. 1990, C. H.19, as amended (the “Code”), and insolvency law. A brief overview of the chronology of the events of this case is useful to understand how it arrived at this crossroads:
The complainant’s employment with C & A was terminated on October 22, 2004.
The complainant filed his complaint to the Commission January 21, 2005.
On June 19, 2007, C & A sought and obtained an initial order under the CCAA. C & A continued to operate during its attempts to restructure.
October 11, 2007 the Commission referred the complaint to the Tribunal.
March 17, 2010, C & A entered into an asset purchase agreement to sell some of the assets of C & A.
April 9, 2010 C & A was assigned into Bankruptcy. As part of the bankruptcy preceding the complainant was advised that he could make a claim as an unsecured creditor of the estate of C & A.
June 15, 2010 CCAA Discharge Order was issued by the Ontario Superior Court of Justice.
DECISION
9The chronology clearly demonstrates that the referral of the complaint by the Commission to the Tribunal was done after the Ontario Superior Court issued its CCAA order.
10Paragraph 14 of the Initial CCAA order states, among other things, that:
No proceeding or enforcement process in any court or tribunal (each a “Proceeding”) shall be commenced or continued against or in respect of [C & A] except with the written consent of [C & A] and the Monitor, or with leave of this Court, and any and all Proceedings currently under way against or in respect of [C&A] or affecting the Business or Property are hereby stayed and suspended pending further Order of this Court. (emphasis added)
11In my view the referral of this matter by the Commission to the Tribunal was a continuation and/or a commencement of a “Proceeding” before the Tribunal. The correspondence suggests that the Commission attempted to obtain consent of the Monitor for the referral; however, there is no evidence that such consent or order of the Court was ever obtained.
12As a result, it appears the provisions of the CCAA order of the Ontario Superior Court of Justice precluded this complaint proceeding before the Tribunal. As it appears the Commission never obtained the consent of the Monitor or leave of the Court to refer the complaint to the Tribunal there is considerable question whether a proper referral was ever made to the Tribunal.
13In the circumstances the parties are directed to provide any submissions to the Tribunal as to why the complaint should not be dismissed on the basis of these findings within 14 days from the date of this Interim Decision.
14I am seized of this matter.
Dated at Toronto, this 20th day of January, 2011.
“Signed by”
Andrew M. Diamond
Member