Swierczek v. The King of Fish, 2015 HRTO 1246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Swierczek Applicant

-and-

The King of Fish Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren Date: September 18, 2015 Citation: 2015 HRTO 1246 Indexed as: Swierczek v. The King of Fish

WRITTEN SUBMISSIONS

Barbara Swierczek, Applicant Monika Tomaszewska, Paralegal

The King of Fish, Respondent Issac Assayag, Representative

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 disability.

NOTICE OF STAY OF PROCEEDINGS

2On September 2, 2015, the trustee in bankruptcy for the estate of the respondent (“the trustee”) filed a Notice of Stay of Proceedings with the Tribunal advising that the respondent had filed an assignment in bankruptcy on July 20, 2015; 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 respondent were stayed.

3This Interim Decision addresses the issue of whether this Application is stayed because of the respondent’s bankruptcy.

ANALYSIS AND DECISION

4Section 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.

5The 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.

6In this case, the Application as against the respondent includes a claim for monetary relief. The Tribunal has held that Code proceedings seeking monetary remedies from a corporate respondent are subject to the stay set out in section 69 of the BIA. As such, they are prevented from proceeding. See, for example, Trowell v. 6286160 Canada, 2010 HRTO 859. As a result, this Application is stayed.

7If the applicant wishes to pursue this Application against the respondent, she must bring a motion in court to have the stay lifted in accordance with s. 69.4 of the BIA. The applicant is directed to advise the Tribunal in writing, within 28 days of this Interim Decision, whether she intends to bring such a motion in court.

ORDER

8This Application is stayed.

9The Tribunal directs as follows:

a. Within seven days of this Interim Decision, the respondent shall provide its Trustee in Bankruptcy with a copy of this Interim Decision.

b. Within 28 days of this Interim Decision, the applicant is directed to advise the Tribunal, in writing, whether she intends to bring a motion in court to have this stay lifted. If she fails to advise the Tribunal of her intentions within this time period, the Tribunal may deem the Application against the respondent abandoned.

10I am not seized.