Gassi v. Essar Steel Algoma, 2016 HRTO 1049

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Gassi

Applicant

-and-

Essar Steel Algoma

Respondent

INTERIM DECISION

Adjudicator: Bruce Best

Date: August 9, 2016

Citation: 2016 HRTO 1049

Indexed as: Gassi v. Essar Steel Algoma

WRITTEN SUBMISSIONS

Michael Gassi, Applicant

Self-represented

Essar Steel Algoma, Respondent

Daniel McDonald, Counsel

Introduction

1This Application was filed on March 3, 2016 alleging discrimination in employment on the basis of place of origin, citizenship, and ethnic origin, contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”)

2Pursuant to a November 9, 2015 superior court order (the “stay order”) issued under the authority of the Companies' Creditors Arrangement Act, R.S.C. 1985, c.C-36 (“CCAA”) all proceedings against the respondent were stayed. The relevant provision of the order read as follows:

NO PROCEEDINGS AGAINST THE APPLICANTS OR THE PROPERTY

17. THIS COURT ORDERS that until and including January 15, 2016, or such later date as this Court may order (the “Stay Period”), no proceeding or enforcement process in any Court or tribunal (each, a “Proceeding”) shall be commenced or continued against or in respect of the Applicants or the Monitor, or affecting the Business or the Property, except with the written consent of the Applicants and the Monitor, or with leave of this Court, and any and all Proceedings currently under way against or in respect of the Applicants or affecting the Business or the Property are hereby stayed and suspended pending further Order of this Court.

3The effective date of the above order has been extended several times, and was in force when the Application was filed on March 8, 2016. Counsel for the respondent advised on June 27, 2016 that most recently the stay has been extended until September 16, 2016.

4The original order and the orders extending the stay also contained the following paragraph:

THIS COURT HEREBY REQUESTS the aid and recognition of any court, tribunal, regulatory or administrative body having jurisdiction in Canada or in the United States to give effect to this Order and to assist the Applicants, the Monitor and their respective agents in carrying out the terms of this Order, including the United States Bankruptcy Court for the district of Delaware. All courts, tribunals, regulatory and administrative bodies are hereby respectfully requested to make such orders and to provide such assistance to the Applicants and the Monitor, as an officer of this Court, as may be necessary or desirable to give effect to this Order or to assist the Applicants and the Monitor arid their respective agents in carrying out the terms of this Order.

5On June 29, 2016, the Tribunal Registrar sent a Notice of Intent to Defer the Application on the basis of the CCAA proceedings. The applicant agrees to deferral. The respondent takes the position that the Application should not be deferred. First, it argues that the Tribunal is already proceeding with three other applications against the respondent despite the CCAA stay, and takes the position that there is no reason the present Application should be treated differently. Second, it notes that the Applicant has registered his claim in the CCAA proceedings. Third, it argues that it is in the interests of justice that the Application proceed expeditiously, and that any delay in waiting for the CCAA proceedings to conclude will result in prejudice to the respondent.

Decision

6The Tribunal has held that it is bound by a stay under the CCAA; see James v. Target Canada, 2015 HRTO 429. Even if this were not the case, however, as I noted in Bazzo v. Essar Steel Algoma, 2016 HRTO 583 (“Bazzo”) at paras 8-11, it is nonetheless appropriate for the Tribunal to co-operate with any orders under the CCAA.

7The stay orders do indicate that a proceeding may be continued with leave of the court, or with written consent of the company and the court-appointed Monitor (in the present case, Ernst & Young Inc.). The respondent is the company, and as noted it wants the Application to proceed. However, there is no indication either that the court has granted leave, or that the Monitor has consented.

8The respondent is correct that three other applications against the respondent are proceeding before the Tribunal. However, as I noted in Bazzo at paras 4-7, the above stay was lifted by a March 14, 2016 order of Newbould J. (the “Grievance Claims Procedure Order”) in the CCAA proceedings with respect to certain proceedings involving unionized employees, including the three applications before this Tribunal referred to by the respondent.

9However, the lifting of the stay under paras. 2(n), 2(x) and Schedule “A” of the Grievance Claims Procedure Order only applied to proceedings commenced by one of the two United Steelworkers locals. The applicant in the present case was a manager and not a member of the union, and commenced this Application on his own behalf. The order lifting the stay does not apply to this Application.

10With respect to the second and third points, even assuming that the Tribunal could proceed in light of the stay, the respondent has not provided sufficient basis to depart from the normal practice. With respect to the second point, it is not clear why the fact that the applicant has registered a claim under the CCAA is relevant to whether the Tribunal should defer. As for the third point, the respondent is also correct that the matter will be delayed if the matter is deferred while the stay is in place. However, that is the case for any matter similarly deferred, and the respondent has not indicated any reason why this Application should be treated differently.

11The stay order is clear that if the respondent wishes the Application to proceed, it can either obtain the written consent of the Monitor or leave of the court. As the respondent has not provided either, the Tribunal will defer the Application until such time as the respondent is not subject to a court order staying any proceeding against it. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on should this happen.

12The respondent has also filed a Request for a summary hearing under Rule 19A of the Tribunal’s Rules of Procedure, and the applicant has filed a Response to the Request. The Tribunal will address this Request once the Application is reactivated.

13I am not seized.