Elaine Budd v. Craiglee Nursing Home Limited, 2011 CanLII 5563

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Budd

Applicant

-and-

Craiglee Nursing Home Limited, Celia McDougall and Roy McDougall

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: February 4, 2011

Citation: 2010 HRTO 251

Indexed as: Budd v. Craiglee Nursing Home

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 provides directions regarding the continuation of the matter.

Background

2The Application arises out of the applicant’s former employment with Craiglee Nursing Home Limited (“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 “ordered by the WSIB”. 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.

3On March 17, 2010, the Tribunal delivered the Application to the respondents. Initially, no Response was received from any of the respondents.

4On May 12, 2010 the Tribunal issued an Interim Decision 2010 HRTO 1068 noting the respondents’ failure to file a Response along with a direction to the applicant to ascertain contact information as the applicant had advised the Tribunal that Craiglee had gone into receivership and the individual respondents were no longer employed there.

5On May 21, 2010, the Court appointed Receiver of the assets, undertakings and properties of Craiglee Nursing Home Limited 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 PROCEEDING AGAINST THE DEBTOR OR THE PROPERTY

10. 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

11. THIS COURT ORDERS that all rights and remedies against the Debtor, the Receiver, Extendicare (soley 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 this 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)

6In addition, the Receiver indicated that it was not prepared to consent to the continuation of the Application and that the applicant would therefore be required to seek leave of the Court to proceed or alternatively could withdraw against Craiglee and continue against the individual respondents.

7On July 12, 2010, the Tribunal re-delivered the Application to the individual respondents at alternative contact information provided by the applicant and sought submissions from the parties on the impact of the Receivership Order on the Application.

8On July 21, 2010, the applicant provided a letter indicating that she was withdrawing her Application against Craiglee and wished to continue against the two named individual respondents.

9On August 17, 2010, the individual respondents filed a Response, which on its face, indicated that it was filed on behalf of the individual respondents as well as Craiglee. The respondents requested deferral and/or a stay of the Application on the basis that Craiglee is in receivership.

10On September 24, 2010, the applicant filed a Reply but it did not address the issue of a deferral or stay.

11On September 28, 2010, the Tribunal received a letter from the Receiver. The Receiver states that the individual respondents are no longer permitted nor legally capable of having real or ostensible authority to represent Craiglee and that it has exclusive jurisdiction. Accordingly, the Receiver states that the individual respondents do not represent Craiglee. The Receiver further notes that the applicant withdrew her Application against Craiglee.

12On December 16, 2010, the Tribunal wrote to the parties seeking submissions on the Receiver’s letter of September 28, 2010 as well as an update on the status of the Receivership Order.

13The Tribunal has received correspondence from all parties confirming that the status of the Receivership Order remains unchanged. No party has provided any submissions challenging the Receiver’s representation that the individual respondents do not represent Craiglee.

Continuation of the Proceeding

14Having regard to the submissions received, I accept that the Receiver acts for Craiglee. Further, absent the request to withdraw, I find that the Application against Craiglee would be stayed as a result of the Receivership Order, subject to a party seeking leave of the Court.

15There are two outstanding issues to address; namely, the applicant’s request to withdraw against Craiglee and the request to defer/stay the proceeding against the individual respondents.

Request to Withdraw

16The applicant has indicated that she is withdrawing the Application against Craiglee. While not characterized as a request to withdraw nor filed on the usual Form 9, I consider it to be such a request. This Request remains outstanding until determined by the Tribunal.

17Having regard to the Response of the individual respondents which indicates among other things that they were acting as “agents of the home”, I find it appropriate to seek further submissions from the parties before addressing the Request. The individual respondents are directed to provide submissions on whether or not they consent or oppose the Request and any reasons in support of their position by February 21, 2011. The applicant and Receiver may provide any reply by February 28, 2011. A copy of a party’s submissions should be sent to the other parties and the affected union along with a Statement of Delivery (Form 23).

18I would note that should the individual respondents oppose the Request and should the Tribunal accept their position, the individual respondents would be required to seek leave of the Court to continue these proceedings against Craiglee given the terms of the Receivership Order. Accordingly, the respondents should indicate their intentions in this regard in any submissions filed.

Request for Deferral/Stay

19The individual respondents also request that the Application be deferred or stayed as a result of the Receivership Order. In support of their request the individual respondents refer to section 215 of the Bankruptcy and Insolvency Act, R.S.C.1985,c.B-3, as amended, (“BIA”) and paragraphs 9 and 10 of the Receivership Order although they do not provide any submissions as to how the provisions they rely on are applicable to them.

20I do not find this is an appropriate case to defer as there is not another proceeding addressing the same or similar facts or issues. However, there is an issue of whether or not the provisions of the BIA and the terms of the Receivership Order apply to the individual respondents so as to stay the proceeding against each of them unless the applicant seeks leave of the Court to do so.

21Section 215 of the BIA provides as follows:

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.

22Paragraphs 10 and 11 of the Receivership Order are set out above. Paragraph 10 stays or suspends proceedings in respect of the “Debtor” (which is defined as Craiglee Nursing Home Limited) or the “Property”. Similarly, paragraph 11 of the Receivership Order stays and suspends rights and remedies against the “Debtor, the Receiver, or affecting the Property” subject to certain exceptions. The individual respondents also refer to paragraph 9 which provides that no proceeding shall be commenced or continued against the “Receiver or Extendicare”.

23Given these provisions, as indicated above, the Application against Craiglee would be stayed. However, there is a question of whether the individual respondents would fall within the scope of these provisions such that a proceeding is stayed against them absent written consent of the Receiver (which has not been given) or with leave of the Court.

24The Tribunal seeks written submissions from the parties as to whether or not the Application against the individual respondents should be stayed. In addition to any other points they wish to raise the parties should specifically address how and in what manner section 215 of the BIA and the language of the Receivership Order applies or does not apply to the individual respondents.

25Further, apart from the question of a stay, the parties should separately address whether there is any other reason why the Application should or should not continue against the individual respondents. In particular, the parties should address 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.

26Any submissions should be filed with the Tribunal by February 21, 2011 and a copy should be sent to the other parties and the affected union along with a Statement of Delivery (Form 23)

27The parties may wish to have regard to the Tribunal’s caselaw prior to filing their submissions. In a number of decisions the Tribunal has addressed the issues of court-ordered stays and whether and in what circumstances, it may be appropriate to continue an application against individual respondents having regard to the specific allegations in the application. See Okunbo v. Nadiscorp Logistics Group, 2010 HRTO 423 and the Tribunal’s caselaw at www.canlii.org.