Kemper v. Allprint Ainsworth Associates, 2011 HRTO 371

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Kemper

Applicant

-and-

Allprint Ainsworth Associates Inc., Doug Pharaoh and Darren Stoltz

Respondents

DECISION

Adjudicator: Ena Chadha Date: February 23, 2011 Citation: 2011 HRTO 371 Indexed as: Kemper v. Allprint Ainsworth Associates

1This Application was filed on June 15, 2010 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment on the basis of disability. The applicant alleges that the respondents failed to provide appropriate modified duties and treated his request for a medical leave of absence as a voluntary termination of employment.

BACKGROUND

2The corporate respondent advised the Tribunal that, on February 5, 2010, it filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act (“BIA”) and that it subsequently went into bankruptcy. Both the applicant and the corporate respondent have advised the Tribunal that Faber Financial Group is appointed as Trustee of the bankruptcy. The personal respondents have also advised that the corporate respondent went bankrupt in Spring 2010.

3The Tribunal issued an Interim Decision, 2010 HRTO 2271, directing the applicant to advise the Tribunal of his intentions in light of the fact that the corporate respondent has declared bankruptcy.

4On December 2, 2010, the applicant wrote to the Tribunal and the other parties confirming that he did not intend to continue the Application against the corporate respondent but seeks to proceed against the personal respondents.

5The Tribunal determined that it is unclear whether continuing with the Application against the personal respondents would constitute proceedings in respect of the property or business of the corporate respondent contrary to any Court (bankruptcy/receivership) Order.

6By way of Case Assessment Direction, the Tribunal directed the respondents to provide confirmation of the Court (Bankruptcy/Receivership) Order and written submissions with respect to whether or not the applicant should be permitted to continue the Application against the personal respondents.

7The corporate respondent provided a copy of the Bankruptcy Certificate issued by the Officer of the Superintendent of Bankruptcy Canada. The Bankruptcy Certificate indicates that the corporate respondent’s date of bankruptcy was May 11, 2010 and that the trustee was required to issue a notice of bankruptcy to all creditors.

DECISION

8The Tribunal has accepted that Code proceedings against a bankrupt respondent are stayed pursuant to section 69 of the Bankruptcy and Insolvency Act (“BIA”). See Rijal v. Distinctive Designs Furniture, 2009 HRTO 297. The applicable stay provisions of the BIA state:

69.3 (1) Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy. [Emphasis added.]

215. Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee [in bankruptcy] with respect to any report made under, or any action taken pursuant to, this Act.

9Pursuant to these sections of the BIA, no action lies against the bankrupt respondent except “by leave of the court”. The Tribunal has held that a bankruptcy stay extends to both the organizational and the individual respondents: Seivewright v. Royal Crest Lifecare Group, 2010 HRTO 1912 (“Seivewright”) and Lachance v. Royal Crest Lifecare Group, 2009 HRTO 315.

10I have reviewed the allegations in the Application. The allegations against the personal respondents relate to their roles and decisions as supervisory employees with the corporate respondent. There are no allegations against the personal respondents independent of their supervisory roles for the corporate respondent. The circumstances of this Application are similar to Seivewright, supra, where the Tribunal held that proceeding with the Application would constitute a proceeding against the bankrupt entity given that the allegations against the personal respondents primarily concerned their acts or omissions as agents or employees of the corporate respondent.

11It is my view that, in light of the allegations, proceeding with this Application would constitute proceedings in respect of the corporate respondent’s business and property contrary to the bankruptcy stay. As such, I find that this Application cannot proceed without leave of the Court or consent of the Receiver, neither of which have been obtained.

12Accordingly, the Application is dismissed.