Robinson v. The Bargain Shop/Red Apple, 2014 HRTO 1031

Human Rights Tribunal of Ontario

B E T W E E N:

Mark Robinson

Applicant

-and-

The Bargain Shop/Red Apple

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: July 15, 2014

Citation: 2014 HRTO 1031

Indexed as: Robinson v. The Bargain Shop/Red Apple

WRITTEN SUBMISSIONS

Mark Robinson, Applicant

Self-represented

1This is an Application filed on May 4, 2014 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to employment because of race, colour, ancestry, ethnic origin, creed and reprisal.

Background

2The applicant alleges the respondent terminated his employment on February 26, 2013 after he displayed disagreement with his superior's discriminatory views. In a Case Assessment Direction dated May 23, 2014, the Tribunal noted as follows:

The Tribunal received correspondence from Red Apple Stores Inc. dated May 8, 2014. Red Apple acknowledges receipt of the Application, but advises that the applicant's employer was the The Bargain! Shop Holdings Inc. and that the applicant's employment was terminated in relation to the filing by the The Bargain! Shop Holdings Inc. under the Companies' Creditors' Arrangement Act, RSC 1985, C. C-36 on February 26, 2013. Red Apple further advises that The Bargain! Shop Holdings Inc. filed an assignment in bankruptcy on September 13, 2013 and the Trustee in Bankruptcy has subsequently been discharged and that no actions can be taken against The Bargain! Shop Holdings Inc. without leave of the court. Red Apple advises that the assets of the The Bargain! Shop Holdings Inc. were sold to Red Apple.

Red Apple takes the position that it cannot be liable for any actions of the applicant's employer The Bargain! Shop Holdings Inc.

The Tribunal directed the applicant to advise the Tribunal of his intentions in light of the information provided by Red Apple.

3On May 26, 2014, the applicant filed brief submissions by e-mail. The applicant submitted that he should be permitted to proceed with the Application because a successor employer has been created to defeat his rights under the Code. The applicant submits that The Bargain Shop/Red Apple remains virtually unchanged with the exception of the ownership changing names.

4On July 4, 2014, Red Apple filed a letter responding to the applicant's submissions. Red Apple reiterated that The Bargain! Shop Holdings Inc. filed for protection under the Companies' Creditors Arrangement Act on February 26, 2014 and that approximately 600 employees, including the applicant, were dismissed on or around that date. Red Apple denies that it was created to defeating the applicant's under the Code regarding his employment and that a claim against it as a successor employer is not possible under the Code. Red Apple also reiterated that The Bargain! Shop Holdings Inc. filed for bankruptcy on September 13, 2013 and that the Trustee in Bankruptcy has since been discharged. Red Apple submitted that in these circumstances The Bargain! Shop Holdings Inc. no longer exists and that no actions can be taken against it without the leave of the Court.

Analysis and Decision

5Red Apple filed with the Tribunal a Notice of Bankruptcy and First Meeting of Creditors pursuant to section 102(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA"), which indicates that The Bargain! Shop Holdings Inc. filed an assignment in bankruptcy on September 13, 2013. The BIA provides, in part:

69 (1) Subject to subsections (2) and (3) and sections 69.4 and 69.5 on the filing of a notice of intention under section 54.1 by an insolvent person,

(a) 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,

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.

6The Tribunal has found that an application seeking monetary compensation for a violation of Code rights is a "claim provable in bankruptcy" which is stayed (i.e., cannot proceed) by operation of section 69(1) of the BIA. See, Rijal v. Distinctive Designs Furniture, 2009 HRTO 297. However, in this case the information before the Tribunal is that the Trustee in Bankruptcy has been discharged, which indicates that the bankruptcy proceeding has concluded. In these circumstances the bankrupt's debts have been discharged and there is no basis for a claim against it. Accordingly, the applicant's claim against The Bargain! Shop Holdings Inc. cannot proceed.

7The applicant submits that Red Apple is a successor employer. The Code, however, does not contain successor employer provisions that allow statutory liability to flow through to a successor corporation, such as are found in the Employment Standards Act, 2000 or Labour Relations Act. In Great Atlantic & Pacific Co. of Canada v. Ontario (Human Rights Commission) (1993) 1993 CanLII 8616 (ON CTGD), 13 O.R.(3d) 824, the Divisional Court held that, in the absence of a successor employer provision in the Code, this Tribunal has no jurisdiction to add a successor employer as a party to a proceeding under the Code. See also Mead v. Loop Enterprise, 2011 HRTO 173 and Barter v. Bata, 2010 HRTO 325.

8The Application cannot proceed as against The Bargain! Shop Holdings Inc. and the Tribunal has no jurisdiction to add Red Apple to the Application as a successor employer. In these circumstances, the Application is dismissed.