Human Rights Tribunal of Ontario
B E T W E E N:
Manuel Da Camara
Applicant
-and-
Perma-Flex/ESI
Respondent
DECISION
Adjudicator: Michelle Flaherty
Index as: Da Camara v. Perma-Flex/ESI
1This is an Application filed on July 28, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").
2The Tribunal served the Application on the respondent. It appeared from correspondence that the respondent declared bankruptcy in April 2009. In a Case Assessment Direction ("CAD") dated June 7, 2011, the Tribunal directed the respondent to provide confirmation of the bankruptcy and any court order staying proceedings. The Tribunal directed the applicant to, among other things, indicate whether he wished to proceed with the Application in the circumstances.
3On June 10, 2011, the Trustee wrote to the Tribunal and advised that the respondent was deemed to have filed an assignment in bankruptcy on June 1, 2009 and that the Trustee had been appointed. The Trustee provided the Certificate of Assignment, indicating that the respondent had filed a notice of intention under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 and also provided a notice of stay of proceedings.
4In a CAD dated October 13, 2011, the Tribunal found that the respondent was subject to a stay of proceedings. It wrote:
the applicant must have the stay lifted or the Tribunal will deem the Application to have been abandoned.
5On November 4, 2011, the applicant's counsel wrote to the Tribunal (and copied the Trustee) indicating that she would not apply to have the stay lifted. On December 16, 2011, the applicant's counsel wrote to the Tribunal and the Trustee and indicated that the applicant was not seeking to have the Application placed in abeyance.
6Section 69 of the Bankruptcy and Insolvency Act provides that no creditor has any remedy against the insolvent person or the insolvent person's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy. The Tribunal has recognized that the result of section 69 of the BIA is to stay an application under the Code seeking monetary remedies: see Rijal v. Distinctive Designs Furniture, 2009 HRTO 297; Seivewright v. Royal Crest Lifecare Group, 2010 HRTO 1912. A creditor may apply to the court to have the stay lifted but if the stay is not lifted it continues until the trustee is discharged.
7I am satisfied that this Application may not proceed.
8Given that the applicant has indicated that he will not attempt to lift the stay or place the Application in abeyance, the Application is dismissed.
Dated at Toronto, this 4th day of January, 2012.
"Signed by"
_____________________________________
Michelle Flaherty
Vice-chair