Ebrahim v. Kleinmann, 2017 HRTO 1401

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Shelina Ebrahim

Applicant

-and-

Patrick Kleinmann

Respondent

DECISION

Adjudicator: Dawn J. Kershaw
Date: October 23, 2017
Citation: 2017 HRTO 1401
Indexed as: Ebrahim v. Kleinmann

Introduction

1This Contravention of Settlement application was filed on January 18, 2016 and a Form 2 Response was due on February 1, 2016.

2By letter dated February 3, 2016, the respondent advised the Tribunal it had filed for bankruptcy for his business and himself on November 19, 2015.

3In light of the respondent’s apparent bankruptcy the Tribunal issued a Case Assessment Direction (“CAD”), dated February 24, 2016, advising the parties that it appears the Application would be stayed for the reasons set out.

4Since that time, the respondent filed his bankruptcy documentation with the Tribunal. According to the Notice of Bankruptcy, dated November 19, 2015, the respondent was to be automatically discharged from bankruptcy on August 20, 2016.

5Although the applicant filed submissions in response to the CAD, her submissions were not responsive to the issue of whether the applicant’s claim was stayed in light of the bankruptcy. The Tribunal sought further specific submissions from the applicant with respect to the stay. She provided those in December 2016 and advised only that she was aware of the stay provisions in the Bankruptcy and Insolvency Act (“BIA”) and had no further submissions.

decision

6The applicable stay provisions in section 69 of the BIA state:

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. [Emphasis added.]

7As set out in the February 24, 2016 CAD, the Tribunal has accepted that Code proceedings against a bankrupt respondent are stayed when the Applicant is seeking a monetary remedy, as the applicant is in this Application. See, e.g.: Rijal v. Distinctive Designs Furniture, 2009 HRTO 297 and McVeety v. Glenile Electric, 2011 HRTO 819.

8Pursuant to these sections of the BIA, no action lies against the bankrupt respondent except “by leave of the court”. The applicant provided no proof that she filed a claim in the bankruptcy proceedings, nor did her name appear as a debtor in the respondent’s list of debtors in the bankruptcy proceedings. As the respondent indicated, he was to be automatically discharged from bankruptcy in August 2016, which would mean that any prior debtors, including the applicant, would have no further claim against him.

9It is my view that the applicant cannot proceed with this matter in light of the bankruptcy stay and subsequent discharge from bankruptcy.

order

10The Application is dismissed.