HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elaine Budd
Applicant
-and-
Celia McDougall and Roy McDougall
Respondents
INTERIM DECISION
Adjudicator: Kathleen Martin
Indexed as: Budd v. McDougall
1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on January 7, 2010. This Interim Decision addresses a Request to Withdraw and the application of a court-ordered stay, as well as providing directions regarding the continuation of the matter.
Background
2The background to this Application is set out in an earlier decision of the Tribunal (2011 HRTO 251) and is summarized again here and supplemented with additional facts relevant to the issues to be determined.
3The Application arises out of the applicant’s former employment with Craiglee Nursing Home (“Craiglee”). The individual respondents were owners of Craiglee at the time of the events in the Application. The applicant alleges that she was discriminated against on the basis of disability when she was not properly accommodated by the respondents in accordance with accommodations recommended by the Workers Compensation and Insurance Board. The applicant also alleges that she was discriminated against on the basis of age when she was told that her position would be given to a younger person. She further states that Celia McDougall has stated before that “old workers should retire so young blood can come in”.
4On May 21, 2010, the Court appointed Receiver of the assets, undertakings and properties of Craiglee wrote to the Tribunal. The Receiver took the position that the proceeding was stayed against Craiglee Nursing Home and enclosed a copy of the Order of the Superior Court of Justice dated April 28, 2009 (the “Receivership Order”). The Receiver specifically relied on the following provisions:
NO PROCEEDINGS AGAINST THE DEBTOR OR THE PROPERTY
- THIS COURT ORDERS that no Proceeding against or in respect of the Debtor or the Property shall be commenced or continued except with the written consent of the Receiver or with leave of this Court and any and all Proceedings currently under way against or in respect of the Debtor or the Property are hereby stayed and suspended pending further Order of this Court.
NO EXERCISE OF RIGHTS OR REMEDIES
- THIS COURT ORDERS that all rights and remedies against the Debtor, the Receiver, Extendicare (solely in its capacity as agent of the Receiver under the Management Agreement or affecting the Property, are hereby stayed and suspended except with the written consent of the Receiver or leave of the Court, provided however that nothing in this paragraph shall (i) empower the Receiver or the Debtor to carry on any business which the Debtor is not lawfully entitled to carry on, (ii) exempt the Receiver or the Debtor from compliance with statutory or regulatory provisions relating to health, safety or the environment, (iii) prevent the filing of any registration to preserve or perfect a security interest, or (iv) prevent the registration of a claim for lien. (emphasis added)
5On July 21, 2010, the applicant indicated in writing that she wished to withdraw against Craiglee and continue her Application against the two named individual respondents.
6A single Response was filed by the individual respondents on September 13, 2010. Among other things, the individual respondents state that Craiglee was owned and operated by Roy McDougall from 1966 to April 18, 2009; that neither of them currently works at Craiglee; that supporting documentation for the events complained of remains at Craiglee, which affects their ability to respond to the allegations; and that the proceeding against them should be stayed based on s. 215 of the Bankruptcy and Insolvency Act, R.S.C.1985,c.B-3, as amended, (“BIA”) as well as paragraphs 9 and 10 of the Receivership Order.
7In the Interim Decision dated February 4, 2011 and a further Case Assessment Direction dated April 6, 2011, I sought further submissions from the individual respondents on the Request to Withdraw, and submissions from all parties on the request that the proceeding be stayed against the individual respondents and whether there is any other reason why the Application should/should not continue (including whether the allegations in the Application are the type of allegations which would result in the Tribunal holding the individual respondents individually liable for any breaches of the Code that may be found).
8The individual respondents have filed brief submissions. The respondents make no submissions on the Request to Withdraw. On the remaining issues, the respondents submit they were acting as agents of Craiglee (Mr. McDougall in the capacity of Director and Administrator; Ms. McDougall as assistant administrator and shareholder). The respondents request a “stay” based on the terms of the Receivership Order and the fact that all allegations took place at Craiglee. The respondents state that as directors of the corporation, they should be protected under the same provisions as the receiver. The respondents also refer to ss.5 and 46.3 of the Code and the Tribunal’s decision in Persuad v. Toronto District School Board, 2008 HRTO 31, without providing any particulars as to how the foregoing relates to their position.
9The Receiver for Craiglee states that it takes no position in respect of a possible stay against the individual respondents but requests that the Application against Craiglee be withdrawn.
10The applicant states that the respondents breached “the Code section 3.3.3 Return to Work” by refusing to accommodate the applicant, and that they should be personally liable for breaches of the Code. She states that although Extendicare managed Craiglee, the individual respondents were involved in the day to day operations of the Home and made decisions. She also refers to having certain letters signed by Ms. McDougall, without particularizing what those letters state and how they may relate to the Application. She further states that she understands that it was Ms. McDougall that denied her accommodation and that she acted alone and not under the direction of Extendicare.
Request to Withdraw
11Based on the submissions made and the absence of any opposition to the Request, the applicant’s Request to Withdraw against Craiglee is granted and the title of proceedings is amended accordingly.
Does the Stay apply to the Individual Respondents?
12In addition to the paragraphs of the Receivership Order cited above, the individual respondents rely on paragraph 9 of the Receivership Order, which provides as follows:
NO PROCEEDINGS AGAINST THE RECEIVER
- THIS COURT ORDERS that no proceeding, enforcement process or extra-judicial proceeding in any court or tribunal (each, a “Proceeding”), shall be commenced or continued against the Receiver or Extendicare except with the written consent of the Receiver or Extendicare as applicable, or with leave of this Court.
13Although they rely on paragraph 9 of the Receivership Order to support their request for a “stay”, the individual respondents do not provide any submissions as to how this provision is applicable to them.
14As well, reference is made by the individual respondents to s.215 of the BIA which provides as follows:
s. 215 Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to, this Act.
R.S., 1985, c. B-3, s. 215; 1992, c. 27, s. 80.
15I have considered the terms of the Receivership Order and s. 215 of the BIA but do not see how these provisions stay the proceeding against the individual respondents.
16With respect to the Receivership Order, none of the provisions cited expressly stay the proceeding against the individual respondents. The scope of paragraph 9 is to stay proceedings against the Receiver or Extendicare (neither of which applies to the individual respondents). Paragraph 10 stays proceedings against or in respect of the “debtor or the property”. Elsewhere in the Receivership Order, the “debtor” is referred to as Craiglee Nursing Home Limited (now removed as a party) and the term “property” is referenced as the debtor’s current and future assets, undertakings and properties including all proceeds. Paragraph 11 is similarly restricted to the debtor, receiver and Extendicare. In my view, the scope of these provisions does not extend to the individual respondents who described themselves as director and administrator (in the case of Mr. McDougall) and assistant administrator and shareholder (in the case of Ms. McDougall).
17While s. 215 of the BIA was also referenced, in the absence of any submissions, I fail to see how it would apply to these respondents to stay the proceeding against them as the protection of that provision is limited to the categories of official receiver, an interim receiver or a trustee.
18Having regard to the foregoing, I do not find that the Application is stayed against the individual respondent by either the paragraphs relied on in the Receivership Order or s. 215 of the BIA.
Are there allegations against the respondents that would support a finding of liability against them as individuals?
19In Johnson v. Yorkview Lifecare, 2009 HRTO 1338 at paragraph 14, the Tribunal held that “neither the statutory stay under the BIA, nor a court stay in either a receivership or CCAA is designed to shield solvent individuals from prosecution for acts for which they may be found to be personally liable.” Where such allegations are made which may result in personal liability, the Tribunal has permitted the applicant to continue to proceed against individuals. See Johnson, supra and Okunbo v. Nadiscorp Logistics Group, 2010 HRTO 423.
20In this case, the narrative in the original Application and the applicant’s submissions are framed in general terms. The applicant alleges that her “employer” refused to accommodate her. There are no specific allegations made about Mr. McDougall other than general statements about the “respondents” not accommodating the applicant, which presumably includes Mr. McDougall. While there are specific allegations against Ms. McDougall, limited particulars are provided.
21There is also minimal narrative provided by the Response. The respondents have answered several questions in the Response by implying that they cannot respond as the records are with the “Company”.
22Having regard to the limited submissions made, I find that I am unable to determine the appropriateness of continuing the Application as against the personal respondents without the receipt of further submissions and/or a hearing. In the circumstances, I find it appropriate to proceed as follows.
23Within 14 days of the date of this Interim Decision, the applicant shall provide detailed particulars of her allegations against each individual respondent including what happened, who was involved, when it happened and where it happened.
24Within 14 days of the date of the receipt of the applicant’s additional particulars, the respondents shall file a response to the particulars. If the respondents are unable to provide a complete response without access to records contained at Craiglee, they may file a Request for an Order During Proceedings asking the Tribunal to order production of the same within the same time frame. Any such Request should be copied to the applicant, the Receiver, and the applicant’s union. The timeframe for responding to the particulars will be suspended pending the receipt of any responses and the Tribunal’s disposition of any Request received.
25The applicant must file any reply to the respondents’ response to the particulars within seven days of its receipt, having regard to the requirements of Rule 9 of Tribunal’s Rules of Procedure.
26The applicant has indicated her interest in mediation, but the respondents have not completed the box in the Response indicating their interest. The respondents will be contacted by the Tribunal to ascertain their interest in mediation.
27The Tribunal will review the material filed and information received and may schedule mediation (subject to the parties consenting to mediation) or may schedule a hearing. If the latter, the Tribunal may issue further directions, including the order of hearing any further submissions on whether it is appropriate to continue the Application against either of the respondents.
Identification of Affected Persons
28The applicant and respondents identified Service Employees’ International Union as an affected person. If the union wishes to intervene in this Application it should file a Request to Intervene within 14 days of the date of this Interim Decision. If the Application proceeds to mediation, the union will be provided with notice of the mediation, but any Request received will be not addressed until after mediation.
29The respondents identified the Workers Compensation and Insurance Board as an affected person, but did not provide any contact details for the same. If the respondents take the position that the WSIB is an affected person, they shall provide contact details of the WSIB within seven days of the date of this Interim Decision.
Summary of Orders and Directions
30The Tribunal orders and/or directs as follows:
i. The applicant’s Request to withdraw the Application against Craiglee Nursing Home Limited is granted and the title of proceeding is amended accordingly;
ii. The applicant shall provide detailed particulars of her allegations against each individual respondent including what happened, who was involved, when it happened and where it happened within 14 days of the date of this Interim Decision;
iii. Subject to paragraph iv below, the respondent shall provide a response to the applicant’s particulars within 14 days of the date of their receipt of the applicant’s particulars;
iv. If the respondents are unable to provide a response as required by paragraph iii without access to the records at Craiglee Nursing Home Limited, they may file a Request For an Order During Proceedings asking the Tribunal to order production of the same within 14 days of the date of their receipt of the applicant’s particulars. Such a Request will suspend the time for filing a response until the Tribunal disposes of any Request received;
v. The applicant may file any reply to the respondents’ response within seven days of the date of such response;
vi. The respondents will be contacted to ascertain their interest in mediation;
vii. The Service Employees’ International Union shall file any Request to Intervene within 14 days of the date of this Interim Decision.
viii. If the respondents take the position that the Workers Safety and Insurance Board is an affected person, they shall provide contact details for the WSIB within seven days of the date of this Interim Decision.
31The Tribunal may issue further directions including hearing any further submissions on whether it is appropriate to continue the Application against either of the respondents.
32I am not seized of this matter.
Dated at Toronto, this 2nd day of November, 2011.
”signed by”______
Kathleen Martin
Vice-chair