Leonid Zavadsky v. Ontario (Education), 2008 HRTO 102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonid Zavadsky

by his Litigation Guardian Vyacheslav Zavadsky

Applicant

-and-

Her Majesty the Queen in Right of Ontario

as represented by the Minister of Education

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: September 24, 2008

Citation: 2008 HRTO 102

Indexed as: Zavadsky v. Ontario (Education)

Human Rights Tribunal of Ontario

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Toronto, ON M7A 2A3

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1This is an Application filed July 2, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent filed its response (Form B) on July 31, 2008. The parties attended a mediation on September 8, 2008 which was not successful in resolving the matter.

2This decision provides case management directions to deal with certain issues raised by the respondent.

3The respondent has submitted the Tribunal does not have the jurisdiction to deal with this Application, on the basis that the Ontario Human Rights Commission had made a final decision on May 27, 2008 deciding not to refer the applicant’s complaint to the Tribunal. It appears that the applicant did file a request to the Commission for Reconsideration on June 15, 2008 under section 37 of the old Part IV of the Code. That section provided that a request for Reconsideration must be filed within 15 days of the mailing of the Commission decision, or “such longer period as the Commission for special reasons may allow.” There is nothing before the Tribunal to indicate whether or not the request for Reconsideration was in fact filed outside the time limits provide for in the old section 37, or whether the Commission had made a decision to allow for an extension of the 15 day period.

4Section 53(3) of the Code provides:

Subject to subsection (4), at any time during the six-month period referred to in subsection (2), the person who made a complaint that is continued under that subsection may, in accordance with the Tribunal rules, elect to abandon the complaint and make an application to the Tribunal with respect to the subject-matter of the complaint.

5The essence of the respondent’s argument is that the Commission had investigated, considered and decided not to refer the complaint to the Tribunal. Therefore, the respondent says, the Commission has made a final decision, and this is not a complaint that is “continued” under section 53(3) of the Code.

6In order for the Tribunal to deal with the issue raised by the respondent, the Tribunal requires additional information and submissions from the parties. Therefore the Tribunal makes the following order:

a. Within 20 days of this decision, the applicant shall deliver to the respondent and file with the Tribunal a copy of:

1. The letter from the Commission dismissing the

applicant’s complaint;

2. The request for Reconsideration;

3. Any correspondence from the Commission in

relation to the request for Reconsideration.

b. Within 20 days of receipt of the information identified in paragraph a. above, the respondent shall deliver to the applicant and file with the Tribunal submissions in support of its position that the Tribunal does not have the jurisdiction to deal with this Application. The respondents should at the same time provide any documents relevant to their position.

c. Within 20 days of receipt of the respondent’s submissions identified in paragraph b above, the applicant shall deliver to the respondent and file with the Tribunal reply submissions setting out its position on the issue of the Tribunal’s jurisdiction to deal with this Application.