Wesley v. 2252466 Ontario Inc., 2012 HRTO 2178

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Darryl Wesley

Applicant

-and-

2252466 Ontario Inc. o/a The Grounds Guys and Shawn Wilson

Respondents

INTERIM decision

Adjudicator: Sheri D. Price

Date: November 21, 2012

Citation: 2012 HRTO 2178

Indexed as: Wesley v. 2252466 Ontario Inc.

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the applicant alleges that the respondents discriminated against him with respect to employment because of his race, colour, ancestry, ethnic origin, disability, sex and/or sexual orientation. The corporate respondent appears to have been the applicant’s employer. The personal respondent was the owner/operator of the corporate respondent.

NOTICE OF STAY OF PROCEEDINGS

2On September 20, 2012, the trustee in bankruptcy for the estate of personal respondent (“the trustee”) filed a Notice of Stay of Proceedings with the Tribunal advising that the personal respondent had filed an assignment in bankruptcy on September 12, 2012; and that pursuant to s. 69 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”), all proceedings against the personal respondent, including this Application, were stayed.

3On September 26, 2012, the Tribunal sought submissions from the parties on the impact of the stay of proceedings on the Application, including whether the stay has any impact on the continuation of the Application against the corporate respondent.

4On October 3, 2012, the trustee wrote to the Tribunal that, although s. 69.3(1) of the BIA imposes a stay of proceedings as against the bankrupt, Shawn Wilson, such that no creditor has any remedy against him or his property, the stay of proceedings did not extend to the corporate respondent.

5In a letter dated October 12, 2012, the applicant submits that the matter ought to proceed against the corporate respondent as there is no stay of proceedings against it. The applicant also requests that both the corporate and the personal respondent be present at the mediation of this matter, which is the next step in the Tribunal’s process.

ANALYSIS AND DECISION

6Section 69.3(1) of the BIA provides as follows:

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)

7The courts have held that legal proceedings seeking monetary relief are “claims provable in bankruptcy” and subject to the statutory stay of proceedings in s. 69 of the BIA. By contrast, legal proceedings in which no monetary relief is sought are not proceedings “for the recovery of a claim provable in bankruptcy” and are not stayed pursuant to s. 69 of the BIA: Peel Housing Corporation v. Siewnarine, 2008 CanLII 31815 (ON SCDC); Rijal v. Distinctive Designs Furniture, 2009 HRTO 1337; McVeety v. Glenile Electric, 2011 HRTO 819.

8In this case, it appears that the Application as against the personal respondent includes a claim for monetary relief. This is evident from the Application itself and from the applicant’s letter of October 12, 2012, in which he advises that he has submitted a proof of claim against the personal respondent in the ongoing proceedings in Bankruptcy Court. Accordingly, the Application as against the personal respondent is statutorily stayed, pursuant to s. 69 of the BIA.

9In the meantime, the statutory stay in s. 69 of the BIA does not apply to the corporate respondent. Accordingly, the applicant is permitted to continue his Application as against it.

10As both the applicant and the corporate respondent (currently represented by Shawn Wilson in his capacity as owner/operator) agree to mediation, and as mediation is the next stage in the Tribunal’s process, mediation will be scheduled shortly.

11I am not seized.