Moore v. Ferro & Company, 2015 HRTO 1509

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philton Moore Applicant

-and-

Ferro & Company and Ellen Helden Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: November 9, 2015 Citation: 2015 HRTO 1509 Indexed as: Moore v. Ferro & Company

1This Interim Decision is written in response to the applicant’s Request for Order dated October 28, 2015, seeking my removal as the assigned adjudicator in this proceeding on the basis of a reasonable apprehension of bias, for disregard of the applicant’s legal submissions, and due to the alleged contravention of the applicant’s rights under the Canadian Bill of Rights.

2In his cover e-mail, the applicant has requested that his Request should not be placed before me for determination. The problem with this request is that an allegation of bias is properly raised before the assigned adjudicator. If the applicant is not satisfied with my response to his Request, then his recourse is to seek judicial review by the Divisional Court.

3The applicant’s Request is precipitated by a Case Assessment Direction (“CAD”) dated October 20, 2015, in which I directed that “unless and until an order from Bankruptcy Court to the contrary is filed with this Tribunal, this proceeding is stayed as against Mr. Ferro personally”. As detailed in that CAD, I gave this direction on the basis of the Certificate of Appointment from the official receiver dated March 12, 2015, which certifies that Mr. Ferro filed an assignment under s. 49 of the Bankruptcy and Insolvency Act (“BIA”) and that Taylor Leibow Inc. was duly appointed as trustee of the estate of the debtor.

4The applicant particularly takes issue with the following paragraph from my CAD:

The applicant takes issue with the information and material on the basis of various alleged deficiencies. In my view, it is not the proper role of this Tribunal to look behind a Certificate of Appointment issued by the official receiver. I agree with the trustee that, if the applicant has any issue with the legitimacy of Mr. Ferro’s bankruptcy and whether the proceeding before this Tribunal is stayed pursuant to the Bankruptcy and Insolvency Act, then the proper forum in which to raise any such issues is in Bankruptcy Court.

5The applicant takes the position that, by referring to his arguments about the validity of Mr. Ferro’s assignment into bankruptcy as raising “various alleged deficiencies” without detailing and addressing the applicant’s arguments, I minimized, “disappeared” and/or edited out his key arguments and thereby denied his right to a fair hearing. He also takes the position that I abdicated my responsibility to engage in an interpretation of legislation, and thereby have deprived the applicant of his rights under section 2(e) of the Canadian Bill of Rights.

6With respect, I did not fail to consider the applicant’s position and arguments on the validity of Mr. Ferro’s bankruptcy. Mr. Ferro made an assignment into bankruptcy under s. 49 of the BIA. Much of the applicant’s submissions erroneously rely upon s. 50.4 of the BIA, which are the provisions under which an insolvent person can make a proposal. The applicant also relies upon the definitions of “insolvent person” and “bankrupt” under the BIA to suggest that the former excludes the latter. That is not entirely accurate. An “insolvent person” is defined in the BIA as a person who is not bankrupt but is unable to meet her or his debt obligations as they become due or whose total property at fair valuation is not sufficient to meet her or his debt obligations. A “bankrupt” means a person who has made an assignment or become subject to a bankruptcy order. An insolvent person becomes a bankrupt by making an assignment under s. 49 of the BIA. This is what Mr. Ferro did when he made his assignment into bankruptcy on March 12, 2015 which was duly filed with the official receiver.

7The applicant has pointed out that s. 69 of the BIA only operates to stay proceedings where a notice of intention to make a proposal has been filed by an insolvent person under s. 50.4, and that no such notice of intention was filed by Mr. Ferro. That is correct as far as it goes. However, the operative stay provision in the instant circumstances is not s. 69 but s. 69.3(1) of the BIA, which states in its relevant part: “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”. As Mr. Ferro made an assignment in bankruptcy that was duly filed with the official receiver, the stay under s. 69.3(1) operates: see Wesley v. 2252466 Ontario Inc., 2012 HRTO 2178 (“Wesley”).

8The applicant is a “creditor” within the meaning of s. 69.3(1) of the BIA, which is defined to mean “a person having a claim provable as a claim under this Act”. What claims are provable in bankruptcy is set out in s. 121(1) of the BIA, which states:

All debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt’s discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt shall be deemed to be claims provable in proceedings under this Act.

9This includes contingent or unliquidated claims, and the BIA sets out a process for the valuation of any such claims: see s. 121(2). As stated in Rijal v. Distinctive Designs Furniture, 2009 HRTO 297 at para. 10, the purpose of the s. 121(1) is, so far as possible, to include every kind of claim in the definition of “provable claim”.

10The applicant has a contingent or unliquidated claim against Mr. Ferro: it is contingent, as in order to assert his claim he must first prove that Mr. Ferro violated his rights under the Human Rights Code; and it is unliquidated, since the amount of any such claim is as yet undetermined. As a result, he is a creditor within the meaning of the BIA, in that he has a claim provable in bankruptcy, albeit a contingent and unliquidated claim. As a creditor of Mr. Ferro, the applicant is subject to the stay provisions in s. 69.3(1) of the BIA.

11The applicant also seeks to invalidate Mr. Ferro’s assignment in bankruptcy on the basis that he did not seek leave of the court. Pursuant to s. 49 of the BIA, leave of the court is not required where a living insolvent person makes a voluntary assignment in bankruptcy. Leave of the court is only required where the insolvent person is deceased at the time she or he (or more accurately her or his estate) seeks to make a voluntary assignment in bankruptcy. As Mr. Ferro was alive at the time of his assignment in bankruptcy, leave of the court was not required.

12I appreciate and acknowledge that I did not set all of that out in my rather brief CAD dated October 20, 2015. But that does not mean that I failed to consider the applicant’s arguments and position. I already in a previous CAD dated August 11, 2015 had referred the parties to this Tribunal’s case law regarding stays of proceedings in the event of the bankruptcy of a respondent, including the two cases cited in this Interim Decision. The Wesley decision in particular makes it clear that, where a respondent has made an assignment in bankruptcy, the operative stay provision is s. 69.3(1) of the BIA. In my view, the basic principles I have set out in this Interim Decision are evident from the case law to which I referred the parties and from a careful reading and understanding of the BIA. Additionally, I note that the Supreme Court of Canada has found that the validity of either the reasons or the result in a decision are not necessarily impugned simply because it does not include all arguments, statutory provisions, jurisprudence or other details it might have; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras. 16-18.

13That said, the point I was making in my CAD dated October 20, 2015 was a more basic one. In this case, we have evidence of a voluntary assignment in bankruptcy by Mr. Ferro prior to his death that was filed with and accepted by the official receiver. In my view, it is not the proper role or responsibility of this Tribunal to look behind the official receiver’s acceptance of the assignment in bankruptcy. If the applicant is seeking to invalidate the assignment in bankruptcy, as he appears to be seeking to do, the proper forum in which to raise such arguments is in Bankruptcy Court. I say this not only because Bankruptcy Court possesses the requisite experience and expertise in administering the BIA, but also because the impact of the applicant’s arguments, if successful, would potentially affect the interests of Mr. Ferro’s creditors, who should be on notice of and given an opportunity to respond to the applicant’s arguments. The proper forum in which to do this is Bankruptcy Court, not in the context of a proceeding before this Tribunal.

14In any event, the issue for me to consider in response to the applicant’s Request for Order is whether any of this gives rise to a reasonable apprehension of bias on my part. The applicant may disagree with the ruling I made in my CAD dated October 20, 2015 granting a stay of this proceeding as against Mr. Ferro subject to any contrary order by the Bankruptcy Court. He may continue to disagree with the principles I have set out in this Interim Decision. He may believe that I failed to give adequate reasons in my CAD dated October 20, 2015, and may continue to feel that way after reviewing this Interim Decision. But whether or not any of that makes my decision vulnerable to judicial review, none of that provides sufficient grounds for me to remove myself due to a reasonable apprehension of bias.

15The test for reasonable apprehension of bias is “whether an informed person, viewing the matter realistically and practically – and having thought the matter through – would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly”: see Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 SCR 369 at 394-5; Landau v. Ontario (Minister of Finance), 2012 ONSC 6926.

16The threshold for a finding of real or perceived bias is high. Mere suspicion is insufficient to support an allegation of bias. Rather, a real likelihood or probability of bias must be demonstrated. There is also a strong presumption in favour of the impartiality of an adjudicative decision maker: see Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 SCR 259 at paras. 59, 76 and 77; Canadian College of Business and Computers Inc. v. Ontario (Private Career Colleges), 2010 ONCA 856 at paras. 24, 27.

17In the instant case, I have made numerous interim decisions and rulings as the assigned adjudicator. Many of these decisions and rulings have gone in the applicant’s favour; some have not. The applicant particularly takes issue with an interim decision I made two years ago, in which I granted a rather late request by the respondents to amend their Response to the Application. And yet, more recently, I granted an even later request by the applicant to amend his Application.

18In my view, an informed and reasonable person looking at the totality of my decisions and rulings in this matter realistically and practically would have no basis conclude that it is more likely than not that I would not decide this matter fairly. The fact that the applicant may feel that I did not adequately or fully address all of his arguments when I issued my CAD dated October 20, 2015 not only is an insufficient basis on its own to support an allegation of a reasonable apprehension of bias on my part, but in my view any such allegation is insupportable when the entire history of my involvement in this proceeding is considered.

19As a result, the applicant’s request for me to remove myself as the assigned adjudicator in this matter is denied, and the hearing will proceed as scheduled on December 1 to 3, 2015 in Hamilton, Ontario.

20With regard to the applicant’s submissions under the Canadian Bill of Rights, I note that the Bill of Rights applies only in federal jurisdiction and has no application to a proceeding before this Tribunal which operates under provincial jurisdiction.

21Finally, in e-mail correspondence to the Tribunal dated October 23, 2015, the applicant sought clarification regarding the statement I made in my CAD dated October 20, 2015 that the stay of proceeding as against Mr. Ferro “does not mean that the alleged actions of Mr. Ferro will not be in issue at the hearing in this matter as a potential basis for the imposition of deemed liability on the organization respondent pursuant to s. 46.3(1) of the Human Rights Code”. In my view, the questions raised by the applicant in his e-mail correspondence are properly a matter for evidence and submissions by the parties at the hearing.

22If the applicant wants to seek to invalidate Mr. Ferro’s assignment in bankruptcy or lift the stay of proceedings in order to allow him to proceed against Mr. Ferro, then the proper forum in which to raise any such arguments is in Bankruptcy Court. If the applicant disagrees with my decision not to remove myself for reasonable apprehension of bias, then his proper recourse is by way of a judicial review application to Divisional Court.

23However, failing any such steps being taken by the applicant and in the absence of any court order staying the instant proceeding, the hearing in this matter will proceed as scheduled.

ORDER

24For all of the foregoing reasons, the applicant’s request for me to remove myself for reasonable apprehension of bias is denied, and the hearing will proceed as scheduled on December 1 to 3, 2015 in Hamilton, Ontario.