Commodaro v. 8858268 Canada Inc., 2016 HRTO 1130

Between:

Teresa Commodaro Applicant

-and-

8858268 Canada Inc. o/a One World Buffet, Peter Andreopulous and Johnny Tsimilotis Respondents

Interim Decision

Adjudicator: Josée Bouchard Date: August 24, 2016 Citation: 2016 HRTO 1130 Indexed as: Commodaro v. 8858268 Canada Inc.

Written Submissions

8858268 Canada Inc. o/a One World Buffet and Peter Andreopulous, Respondents Self-represented

Introduction

1This is an Application filed under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), in which the applicant alleges discrimination with respect to employment because of ancestry, place of origin, ethnic origin, sex, sexual solicitation or advance and reprisal.

2On October 7, 2015, the corporate respondent and the personal respondent Mr. Andreopulous filed their Response.

3The personal respondent Mr. Tsimilotis failed to file a Response. On April 14, 2016, the Tribunal issued Interim Decision 2016 HRTO 479 ordering the following:

a. Mr. Tsimilotis is deemed to have accepted all of the allegations set out in the Application;

b. Mr. Tsimilotis is deemed to have waived all rights to notice or participation in these proceedings; and

c. Mr. Tsimilotis is not entitled to further notice with respect to the Application.

Notices of Stay of Proceedings

4This Interim Decision addresses two Notices of Stay of Proceedings filed with the Tribunal on July 26, 2016 and next steps.

5On July 26, 2016, former counsel for the corporate respondent and the personal respondent Peter Andreopulous filed two Notices of Stay of Proceedings ("Notices") with the Tribunal. The Notices advised that the corporate respondent and the personal respondent Mr. Andreopulous had filed for bankruptcy on June 7, 2016 and that pursuant to s. 69.3 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the "BIA"), all proceedings against the corporate respondent and the personal respondent Mr. Andreopulous were stayed.

6 Section 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.

7The 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.

8In this case, the Application includes a claim for monetary relief. The Tribunal has held that Code proceedings seeking monetary remedies from respondents 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 and Wesley v. 2252466 Ontario Inc., 2012 HRTO 2178. As a result, this Application is stayed against the corporate respondent and the personal respondent Mr. Andreopulous.

9If the applicant wishes to pursue this Application against the corporate respondent and the personal respondent Mr. Andreopulous, she must bring motions in court to have the stays lifted in accordance with s. 69.4 of the BIA. The applicant is ordered to advise the Tribunal in writing, within 28 days of this Interim Decision, whether she intends to bring such motions in court.

10The proceedings against the personal respondent Tsimilotis continue. Once the applicant has advised the Tribunal in writing whether she intends to bring motions in court to have the stays lifted in accordance with s. 69.4 of the BIA, or if the applicant fails to do so within 28 days of this Interim Decision, the Tribunal will consider how best to proceed. The Tribunal may issue directions or request further submissions, where appropriate.

ORDER

11This Application is stayed against the corporate respondent and the personal respondent Mr. Andreopulous.

12The Tribunal orders as follows:

a. Within seven days of this Interim Decision, the corporate respondent and the personal respondent Mr. Andreopulous shall provide their Trustee in Bankruptcy with a copy of this Interim Decision.

b. Within 28 days of this Interim Decision, the applicant is ordered to advise the Tribunal, in writing, whether she intends to bring motions in court to have the stays lifted. If she fails to advise the Tribunal of her intentions within this time period, the Tribunal may deem the Application against the corporate respondent and the personal respondent Mr. Andreopulous abandoned.

13I am not seized of this matter.

Dated at Toronto, this 24th day of August, 2016.

"Signed By"

Josée Bouchard Vice-chair