Cierra Barnett v. Rol-land Farms Limited, 2011 HRTO 1506

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cierra Barnett Applicant

-and-

Rol-land Farms Limited Respondent

DECISION

Adjudicator: Andrew M. Diamond Date: August 12, 2011 Citation: 2011 HRTO 1506 Indexed as: Barnett v. Rol-land Farms Limited

APPEARANCES

Cierra Barnett, Applicant ) No one appearing Rol-land Farms Limited, Respondent ) Peter Van Mol, Representative

INTRODUCTION

1These reasons deal with a Request for Order During Proceedings in which the respondent requests that the Human Rights Tribunal of Ontario (the “Tribunal”) dismiss the Application because, it argues, the applicant was barred from bringing the Application as a result of the respondent undergone a plan of arrangement under the Companies’ Creditors Arrangement Act R.S.C. 1985, c. C-36, as amended (the “CCAA”).

2The matter proceeded by way of conference call. The applicant did not attend on the conference call although properly notified by the Registrar. Mr. Van Mol appeared on behalf of the respondent. For the reasons set out below, the Request for Order During Proceedings to dismiss the Application is granted and the Application is hereby dismissed.

BACKGROUND

3This 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 (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 applicant commenced employment with the respondent on August 15, 2005.
• On December 10, 2008, the respondent sought and obtained an initial order (the “Initial Order) under the CCAA.
• February 7, 2009, the applicant went off on sick leave.
• April 8, 2009, the applicant’s employment was terminated.
• This Application under section 34 of the Code was received by the Tribunal on April 15, 2009.
• The Plan of Arrangement under the CCAA was finalized on December 9, 2009.

DISCUSSION

4The chronology demonstrates that the applicant’s employment was terminated and this Application commenced after the filing by the respondent for protection under the CCAA but before the finalization of the plan of arrangement.

5The Initial Order under the CCAA issued by the Ontario Superior Court of Justice on December 10, 2008 contains two provisions that are of particular relevance to these proceedings. The first is the court ordered that:

Until and including January 9, 2009, or such later date as the Court may order (the “Stay Period”) no proceeding or enforcement process in any court or tribunal (each a “Proceeding”) shall be commenced or continued against or in respect of the [Rol-Land Farms]…without written consent of [Rol-Land Farms] and the Monitor, or with leave of this Court….(emphasis added)

6Through a series of orders the Superior Court of Justice extended the Stay Provisions of the Initial Order through to February 8, 2010, when it issued the Sanction Order sanctioning the Plan of Arrangement.

7The second relevant provision of the Initial Order is found at paragraph 11 (b), where it authorizes the respondent to:

Terminate the employment of such employees or temporarily lay off such of their employees as they deem appropriate on such terms as may be agreed upon with such employees, or failing such agreement, to deal with the consequences thereof in the Plan.

Having had their employment terminated while the respondent was under protection, the applicant had a right to make a claim in the CCAA proceeding. As the applicant failed to attend on the conference call I have no way of knowing if this in fact was done.

8The Tribunal was not provided with any evidence to suggest that consent or leave was ever obtained by the applicant to commence this Application, therefore I can only conclude that this Application is void as having been commenced in the face of a court-ordered stay. The Application is therefore dismissed.