Markland v. Casa Verde Retirement Residence and Long-Term Care, 2011 HRTO 1856

Human Rights Tribunal of Ontario

Between:

Thelma Markland Applicant

-and-

Casa Verde Retirement Residence and Long-Term Care and Service Employees International Union, Local 1 Canada Respondents

Interim Decision

Adjudicator: Ena Chadha Date: October 13, 2011 Citation: 2011 HRTO 1856 Indexed as: Markland v. Casa Verde Retirement Residence and Long-Term Care

1The applicant filed an Application on June 16, 2010, under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which she alleges discrimination with respect to employment on the basis of disability and age. The applicant alleges that her employment was discriminatorily terminated on October 20, 2009.

2The respondents filed their respective Responses on August 30, 2010.

3On September 13, 2011, the Tribunal issued a Case Assessment Direction notifying the parties that a half-day summary hearing would be scheduled to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or parts of the Application will succeed.

4On August 5, 2011, counsel for the applicant wrote to the respondents, copied to the Tribunal, questioning the status of counsel’s representation of the respondent employer given information that the respondent employer was in receivership.

5On September 20, 2011, the Tribunal wrote to counsel for the respondent employer, copied to the other parties, directing that the respondent employer advise the Tribunal and the parties whether it is in receivership and whether a stay of proceedings has been ordered.

6On September 29, 2011, counsel for the respondent employer wrote to the Tribunal to advise that the corporate entity, Paragon Health Care Inc., which operated the respondent employer, is in receivership and a stay of proceedings is in effect. Counsel provided a copy of the Appointment Order confirming the stay.

7Based on a review of the material filed by counsel for the respondent employer, it appears that pursuant to an order of the Ontario Superior Court of Justice (Bankruptcy and Insolvency), dated January 23, 2006, and section 47(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B.3 (“BIA”), an Interim Receiver was appointed with respect to the assets and property of Paragon Health Care Inc. (“Paragon”), the owner of the respondent employer.

8The Tribunal has accepted that Code proceedings against a bankrupt respondent are stayed pursuant to section 69 of the BIA and no action lies against the bankrupt respondent except “by leave of the court”. See for example, Rijal v. Distinctive Designs Furniture, 2009 HRTO 297.

9As noted above, the Order provided by counsel for the respondent employer with respect to Paragon is dated January 23, 2006. Based on the information contained in the parties’ Application and Responses, it appears that the respondent employer was operating in 2009 and that the parties were scheduled to attend at arbitration in September 2010. As such, the current status of the respondent employer and the receivership is unclear, as well as whether or not this Application as against the respondent employer is to be stayed. In these circumstances, the Tribunal requires clarification regarding these various issues.

ORDER

10The Tribunal makes the following orders:

I. Within 14 days of the date of this Interim Decision, the Tribunal orders the respondent employer, or the Receiver in Bankruptcy, to advise the Tribunal and provide confirming documentation, copied to the parties, as to the current status of the respondent employer and whether or not a stay of proceedings is presently in effect with respect to the respondent employer and this Application; and

II. If the respondent employer or Receiver in Bankruptcy confirms that a stay of proceedings remains in effect with respect to the respondent employer and this Application, the applicant is directed to advise the Tribunal, within 14 days of the respondent employer’s correspondence, as to whether she intends to seek leave of the Court to lift the stay of proceedings and her intentions with respect to the Application as against the respondent union. If the applicant fails to confirm her intentions, the Tribunal may deem the Application abandoned and close its files; and

III. Within 14 days of the date of the applicant’s correspondence, the respondents are directed to file written submissions responding to the applicant’s position.

11I am not seized of this matter.