Bradford v. Kappeler Masonry Ltd., 2017 HRTO 1479

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Garrick Bradford

Applicant

-and-

Kappeler Masonry Ltd. and Gerhard Kappeler

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw
Date: November 8, 2017
Citation: 2017 HRTO 1479
Indexed as: Bradford v. Kappeler Masonry Ltd.

1A preliminary hearing in respect of this Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended, was scheduled for September 22, 2017 by teleconference.

2The applicant named both a corporate respondent and a personal respondent. The Application as against the corporate respondent is stayed (but not withdrawn) because of bankruptcy proceedings. Until this time, the Application has been allowed to continue as against the personal respondent.

3The preliminary hearing was set in accordance with the Tribunal’s Case Assessment Direction, dated April 19, 2016, and was to address the issue of whether the Application should be dismissed as against the personal respondent because it was filed more than one year after the date of the last alleged incident of discrimination and/or because a proceeding before the Workplace Safety and Insurance Board or a civil action had already appropriately dealt with the issues raised in the Application.

4At the outset of the preliminary hearing, the Tribunal advised the parties that because of the corporate respondent’s bankruptcy and the resultant stay against the corporate respondent, the Tribunal needed to determine if the applicant’s claims against the personal respondent also were stayed, because if they were then the preliminary hearing could not proceed. I note that in fact there are two stays in operation with respect to the corporate respondent; the first is a stay of all proceedings against Kaeppeler Masonry Ltd. arising from a Receivership Order issued by the Ontario Superior Court of Justice and the second is a stay arising under section 69.3 of the Bankruptcy and Insolvency Act, RSC 1985, c B-3.

5The applicant, the personal respondent and counsel for the corporate respondent’s receiver in the bankruptcy proceedings attended the preliminary hearing.

6The applicant advised at the outset that he did not wish to withdraw his Application against the corporate respondent, and because of this, as indicated, it remains stayed but is not withdrawn. Counsel for the corporate respondent advised that the corporate respondent remains in bankruptcy and at the time of this preliminary hearing on September 22, 2017 is in the process of being discharged.

7The applicant and the personal respondent made submissions with respect to whether this Application is stayed as against the personal respondent.

parties’ submissions

8By way of background, the applicant worked at the respondent. The personal respondent was the president of the corporate respondent at the time. The applicant alleges discrimination on the basis of disability for not accommodating him appropriately at work. In addition he alleges that a foreman harassed him by making discriminatory comments to him on the job.

9The applicant submits that if he succeeds against the personal respondent then he will not proceed against the corporate respondent.

10The personal respondent submits that while the Bankruptcy and Insolvency Act, RSC 1985, c B-3 cannot shield a personal respondent from liability, a personal respondent only attracts liability if he is acting in his individual capacity and not as an agent of the corporate respondent. If the applicant seeks monetary relief from the personal respondent, then the corporate respondent may have a contribution and indemnity obligation to the personal respondent, which would mean the applicant is a contingent creditor of the corporate respondent, and therefore if as in this case the Application is stayed as against the corporate respondent, then similarly the Application is stayed as against the personal respondent.

11The personal respondent referred me to the case of Johnson v. Yorkview Lifecare, 2009 HRTO 1338 (“Johnson”), in which the applicant was permitted to proceed with her case against the personal respondents. The Tribunal in that case declined to make an order removing the corporate respondent as a party because in its view there was no outstanding Application against the corporate respondent because the applicant brought her Application after the stay came into effect. Put another way, in that case it was unnecessary to consider whether the application could proceed against personal respondents while stayed against a corporate respondent because it was found that the corporate respondent was never a proper party to begin with.

12The personal respondent pointed out that in Johnson the applicant had made allegations against the personal respondents alleging they personally had breached the Code by them, not just in their roles as agents or employees of the corporate respondent. In this case, the personal respondent takes the position that all the applicant’s allegations are against the personal respondent in his capacity as an employee or agent of the corporate respondent. As such, all of the applicant’s allegations are against the corporate respondent and as such are stayed.

13The applicant submits that no one takes action at the corporate respondent without the personal respondent knowing about it and therefore he should be personally liable. The corporate respondent submits that mere knowledge by the personal respondent is not sufficient to attract personal liability. He points out that the applicant’s only harassment allegation is not against the personal respondent but against a foreman who made allegedly inappropriate comments to the applicant. He submits the personal respondent was not involved, but does not deny he found out about the alleged comments after the fact.

analysis and decision

14The Tribunal has previously held that a bankruptcy stay extends to both the organizational and the individual respondents, see for example: Seivewright v. Royal Crest Lifecare Group, 2010 HRTO 1912, Lachance v. Royal Crest Lifecare Group, 2009 HRTO 315, and Kemper v. Allprint Ainsworth Associates, 2011 HRTO 371. I find that the Application is stayed against the personal respondent for the reasons that follow.

15The corporate respondent accepts liability for any of its employees’ acts in the course of their employment.

16A claim of harassment may be made against a personal respondent, in which case a personal respondent may attract liability separate from the corporate respondent.

17In this case, the applicant alleged harassment, but not by the personal respondent, though he alleges the personal respondent knew of the harassment because he was the president of the corporate respondent at the time.

18The applicant’s other allegations, including that he was not properly accommodated, are allegations against the corporate respondent, which would have liability for any remedy.

19Because of the nature of the applicant’s allegations, it is my view that this Application is stayed as against the individual respondent because the corporate respondent, against which the Application is already stayed, would be liable for any monetary remedy.

20I note that in this case the applicant never sought leave from the court to proceed with this Application. If that is the case then the applicant should be aware that once the corporate respondent is discharged in bankruptcy, all prior claims against it that are ‘provable in bankruptcy’ are generally expunged as a consequence of the discharge from bankruptcy. As a result at the end of the stay of proceedings against the corporate respondent, the applicant may not be able to proceed with this Application.

order and directions

21This Application is stayed against the personal respondent.

22If the stay is lifted, any party can request that the Tribunal schedule a preliminary hearing to deal with the outstanding issues that include:

a. Whether the applicant can proceed with the Application after the corporate respondent is discharged from bankruptcy;

b. If the applicant can proceed, whether the applicant can proceed with the allegations in this Application in light of the alleged delay issue; and

c. if the applicant can proceed, whether the issues in the Application have been appropriately dealt with in another proceeding as set out in the Case Assessment Direction, dated April 19, 2016.