HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sattie Singh
Applicant
-and-
Priszm Inc. and Ken Horner
Respondents
INTERIM DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Singh v. Priszm Inc.
Introduction
1On November 7, 2011 The Human Rights Tribunal of Ontario (the “Tribunal”) issued an interim decision in this matter in which it held that:
2On October 6, 2011, counsel for the respondents wrote to the Tribunal to advise that Priszm Inc. was placed into receivership under the Bankruptcy and Insolvency Act …
3In the circumstances, the Tribunal directs the applicant to advise whether she wishes to continue her Application against Priszm Inc. and/or the individual respondent by November 10, 2011
4If the applicant indicates that she intends to pursue her Application against the corporate respondent she should, also by November 10, 2011, provide submissions on the effect of the receivership on her Application. In the event that the applicant makes submissions with respect to this issue raised in this Interim Decision, the respondents have until November 17, 2011 to provide written response submissions. Upon receipt of the parties’ submission, the Tribunal may issue further directions.
2On November 8, 2011 the applicant filed a Request for an Order During Proceedings to substitute the Receiver appointed under the Bankruptcy and Insolvency Act (“BIA”) for the corporate respondent. That request was followed the next day with the filing of “Submissions of the Applicant in Response to the Tribunal’s Interim Decision Dated November 7, 2011”. This Interim Decision is both a response to the Request for an Order During Proceedings as well as the further directions of the Tribunal referenced in paragraph 4 of the November 7, 2011 Interim Decision.
Background
3The applicant was employed by the corporate respondent in one of its Kentucky Fried Chicken stores. The individual respondent was her manager. The applicant alleges that in October 2009 the respondents breached her rights under the Ontario Human Rights Code (the “Code”) and that she suffered work place discrimination as a result of her race, colour, place of origin and ethnic origin. The Application to the Tribunal is dated March 23, 2010. The respondents filed a response and the applicant filed a reply which was received on July 13, 2010. On April 6, 2011 counsel for the corporate respondent advised the Tribunal that on March 31, 2011 the corporate respondent had obtained protection under the Companies’ Creditors Arrangement Act (“CCAA”).
Law and Analysis
4The CCAA stayed the Application against the corporate respondent. The applicant provided no information that she either made a claim in the CCAA proceedings or sought leave to continue this Application.
5On September 14, 2011 the CCAA proceedings were terminated and a Receiver was appointed under the BIA. The applicant in her Request for an Order During Proceedings states that:
The corporate respondent …has gone to receivership [sic] according to the above order and therefore the Receiver should be added as a respondent in order to represent the corporate respondent’s interests in this matter.
In her November 9, 2011 submissions the applicant expands on this submission and argues that as paragraph 5 (j) of the Receivership Order authorizes the Receiver “to defend all proceedings now pending against the corporate respondent” the applicant should be allowed to continue the Application against both the individual and the corporate respondent.
6I find that the applicant quotes subparagraph 5 (j) of the Appointment Order out of context. The subparagraph must be read with the preamble to paragraph 5 which reads:
THIS COURT ORDERS that, subject to paragraphs [42] to [47] of this Order [which deal with leases], the Receiver is hereby empowered and authorized, but not obliged, to act at once in respect of the Property and, without in any way limiting the generality of the foregoing, the Receiver is hereby expressly empowered and authorised to do any of the following where the Receiver considers it necessary and desirable:
…
(j) to initiate, prosecute and continue the prosecution of any and all proceedings and to defend all proceedings now pending or hereafter instituted with respect to the Debtor… (emphasis added).
7Furthermore, paragraph 5, (j) of the Receivership Order must be read in the context of paragraphs 10, 11 and 12 of the Order which read:
NO PROCEEDINGS AGAINST THE RECEIVER
- THIS COURT ORDERS that no proceeding or enforcement process in any court or tribunal (each a “Proceeding”) shall be commenced or continued against the Receiver except with the written consent of the Receiver or with leave of this Court
NO PROCEEDINGS AGAINST THE DEBTOR OR THE PROPERTY
- 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 war against tor 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
- THIS COURT ORDERS that all rights and remedies against the Debtor. The Receiver 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 this stay and suspension does not apply in respect of any “eligible financial contracts” as defined in the BIA, and further provided that nothing in this paragraph shall (a) empower the Receiver or the Debtor to carry on any business which the Debtor is not lawfully entitled to carry o, (b) exempt the Receiver from compliance with statutory or regulatory provisions relating to health, safety or the environment, (c) prevent the filing of any registration to preserve or perfect a security interest, or (d) prevent the registration of a lien.
(Emphasis added)
The applicant has provided no evidence that she has obtained either leave of the Superior Court of Justice, Commercial List, or the consent of the Receiver to proceed against the Receiver or continue the Application against the corporate respondent.
8My reading of the CCAA orders and Receivership order do not provide a stay of proceedings against employees of the corporate respondent. Furthermore, the individual respondent has not provided any submissions with respect to the impact of the various orders on the application vis- a -vis him. In Rijal v. Distinctive Designs Furniture, 2009 HRTO 1337, I found that where the application made specific allegations against an individual who was an employee of an insolvent company the application could continue as against the individual respondent for a determination of whether that person independently violated the applicant’s rights under the Code.
Decision
9The Application is stayed as against the corporate respondent and may not continue against the corporate respondent absent leave or the Court or consent of the Receiver.
10Furthermore, the applicant has not obtained the requisite leave of the Court or consent of the Receiver to add the Receiver as a party to the Application; as a result the Request for an Order During Proceedings in denied.
11Unless the applicant obtains the necessary leave or consent within thirty days of this decision, this application shall continue as against the individual respondent only.
12I am not seized
Dated at Toronto, this 8th day of March, 2012
”signed by”
Andrew M. Diamond
Member