McVeety v. Glenile Electric, 2011 HRTO 819

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kim McVeety

Applicant

-and-

Glenile Electric Inc. and Nile Baker

Respondents

interiM DECISION

Adjudicator: Alison Renton

Date: April 26, 2011

Citation: 2011 HRTO 819

Indexed as: McVeety v. Glenile Electric

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 August 20, 2010 alleging discrimination in employment on the ground of sex, including sexual harassment and sexual solicitation or advances.

BACKGROUND

2The respondents failed to file a Response within the time period required by the Tribunal’s Rules of Procedure. A letter dated September 10, 2010 from J.P. Graci & Associates Ltd., Trustee in Bankruptcy and Receiver Manager (“the Trustee”) was sent to the Tribunal. The letter attached several documents including a Notice of Bankruptcy and First Meeting of Creditors signed by Joseph Paul Graci on April 1, 2010, which states that the respondent Glenile Electric Ltd. was deemed bankrupt on March 30, 2010 and that the personal respondent filed an assignment in bankruptcy on April 28, 2010. The Tribunal sent a copy of the material to the applicant as it appeared that the documentation had not been sent by the Trustee to the applicant.

3In an Interim Decision, 2010 HRTO 2246, the Tribunal stated at para. 14:

According to the material sent to the Tribunal by the Trustee, the respondents have declared bankruptcy. The Tribunal has determined in a number of decisions that section 69 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”), stays applications filed with the Tribunal from proceeding against a respondent who has been determined to be bankrupt under the BIA. See, for example, Trowell v. 6286160 Canada, 2010 HRTO 859. Tribunal decisions are accessible at www.canlii.org. Under these circumstances, the Tribunal has determined that an applicant must have the stay lifted or take other steps to enable an application to proceed within a specific timetable otherwise the Tribunal will deem the application to be abandoned.

4The Tribunal sent the Interim Decision to the applicant, the respondents, and the Trustee. The Tribunal directed the applicant to provide written submissions addressing these issues. The applicant’s counsel filed written submissions dated December 8, 2010. It does not appear that the applicant sent her submissions to the respondents or the Trustee.

5In her submissions, the applicant notes that in her Application she is not seeking any monetary relief from the respondents. Rather, she is seeking a declaration that her human rights were violated by the respondents on the grounds of sexual harassment and sexual solicitation. As she is not seeking monetary relief, the applicant submits that section 69 of the BIA is not applicable in the circumstances, and references Rijal v. Distinctive Designs Furniture, 2009 HRTO 297 and Peel Housing Corporation v. Siewnarine (2008), CanLII 31815 (ON S.C.D.C.) in support of her position that she should be permitted to continue with her Application.

ANALYSIS

6In Rijal, supra, this Tribunal noted that normally an application will be stayed when a respondent files for bankruptcy following the wording of section 69 of the BIA. However, the Member noted a distinction between those applications in which a monetary remedy was being sought against the bankrupt respondent versus those in which no monetary remedy was being sought. At para. 20, the Member stated:

Assuming the applicant does not seek any monetary relief from the respondents, but only wishes a declaration that his rights under the Code have been infringed, it is my view that that would not be a claim ‘provable in bankruptcy’ [in accordance with section 69.1 of the BIA] as the applicant would not be a creditor of Distinctive [the respondent] seeking a remedy. However, if it is the intention of the applicant to seek any monetary relief from any of the respondents (as the individual respondents maybe [sic] entitled to contribution or indemnity from Distinctive) the applicant would be a contingent creditor of Distinctive, and, as a result, this Application would be stayed by operation of section 69 of the BIA.

7In Peel Housing Corporation, supra, the issue before Ontario’s Divisional Court was whether the Ontario Rental Housing Tribunal (“ORHT”) was correct in staying Peel Housing’s application pursuant to the BIA when the landlord sought an order from the ORHT to evict a tenant when the tenant breached minutes of settlement entered into pursuant to the Tenant Protection Act, S.O. 1997, c. 24.

8The minutes of settlement set out the tenant’s requirement to make periodic payments for rent arrears and noted that failure to pay the rent arrears could result in the landlord seeking an order for her eviction. The tenant defaulted on making the arrears payments although she continued to pay her regularly monthly rent. When she was discharged from bankruptcy, the landlord sought an order of the ORHT evicting the tenant, but not seeking an order for the payment of the arrears. The ORHT declined to issue an eviction order, finding that the landlord’s claims were stayed under the BIA.

9The Divisional Court held that as there was no claim for any monetary order, the ORHT had erred in finding that the proceeding was stayed by operation of section 69 of the BIA. It allowed the appeal and remitted the issues back to the ORHT for a new hearing before a different member.

10In this Application, the applicant specifically notes that she is not seeking any monetary remedies as against either respondent. Accordingly, and following Rijal, supra, and Peel Housing Corp., supra, the Tribunal has determined that the Application can continue as the applicant is not seeking any monetary relief against the respondents.

11The Tribunal shall send a copy of this Interim Decision and the applicant’s December 2010 written submissions to the respondents and the Trustee. As the respondents have not filed a Response, they are directed to do so within 30 days of the date of this Interim Decision. The Tribunal draws the respondents’ attention to Rule 5.5 of the Tribunal’s Rules of Procedure which set out the consequences of a respondent’s failure to file a Response.

12I am not seized of this matter.