Killby v. Kappeler Masonry Corporation, 2015 HRTO 66

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kevin Killby

Applicant

-and-

Kappeler Masonry Corporation

Respondent

INTERIM DECISION

Adjudicator: Yola Grant

Date: January 16, 2015

Citation: 2015 HRTO 66

Indexed as: Killby v. Kappeler Masonry Corporation

APPEARANCES

Kevin Killby, Applicant

Todd Cook, Representative

1This is an Application filed alleging contravention of settlement under section 45.9(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The written minutes of settlement related to a previous Application before this Tribunal (file no. 2010-06511-I) that was executed by the same parties on December 6, 2013.

2On December 5, 2013, the respondent was ordered into receivership pursuant to section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”), and section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended (the “Receivership Order”). Grant Thornton Limited was appointed by the Court as Receiver of the respondent debtor Kappeler Masonry Corporation (“KMC”).

3The Tribunal has reviewed the Receivership Order and heard oral submissions from the Applicant by conference call on January 6, 2015. The Receiver for the respondent KMC declined to participate in the conference call hearing.

4The corporate respondent KMC was the sole named responding party in the instant Application and the previous Application that was settled. No corporate director was named in his or her personal capacity as a respondent in the Applications alleging a breach of the Code.

DECISION

5The Tribunal is satisfied that the Receivership Order contains provisions staying the instant HRTO Application against the corporate respondent KMC. In particular, paragraphs 3, 7 and 9 of the Order provide as follows:

3. THIS COURT ORDERS that the Receiver is hereby empowered and authorized, but not obligated, to act one in respect of the Property and, without in any way limiting the generality of the foregoing, the Receiver is hereby expressly empowered and authorized to do any of the following where the Receiver considers it necessary or 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 each of the Debtors…

7. THIS COURT ORDERS that no proceeding or enforcement process in any court or tribunal (each, a “Proceeding”), shall be commence or continued against the Receiver except with the written consent of the Receiver or with leave of this Court.

8. THIS COURT ORDERS that all rights and remedies against each of the Debtors, the Receiver, or affecting the Property, are hereby stayed and suspended except with the written consent of the Receiver or leave of the Court, provided that this stay and suspension does not apply in respect of any “eligible financial contract” a defined in the BIA, and further …

6The applicant conceded that the signed minutes of settlement does not constitute an “eligible financial contract” that is among the few items exempted from the broad stay and suspension conferred by the Receivership Order under the BIA. The Eligible Financial Contract General Rules (Bankruptcy and Insolvency Act), S.O.R./2007-256, provides definitions for the types of financial agreements (relating to trade in securities and derivatives) that are “eligible” for the purpose of section 2 of the BIA. At a glance, it is clear that Minutes of Settlement does not meet those definitions.

7This instant Application for contravention of a settlement is stayed pending leave of the Ontario Superior Court of Justice (Commercial List) or consent of the Receiver. (See also Singh v. Priszm Inc., 2012 HRTO 468, and Reardon v. Tracan Electronics Corporation, 2011 HRTO 1821).

ORDER

8The Tribunal orders as follows:

(a) The applicant is directed to provide a copy of the Application and this Interim Decision to counsel for the Receiver, Monique Sassi, Cassels Brock Lawyers, [email address redacted] within ten (10) days of the date of this Interim Decision;

(b) If the applicant wishes to pursue the Application, he must either bring a motion in the Superior Court to lift the stay or reach an agreement with the Receiver with respect to his/her claim within 90 days of the date of this Interim Decision; and,

(c) The applicant is directed to advise the Tribunal of his/her intentions in writing within 45 days of the date of this Interim Decision. If the applicant fails to do so the Tribunal may deem the Application abandoned and close its file.