Saxon v. Amherstburg (Police Services Board), 2008 HRTO 119

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

James M. Saxon

Applicant

-and-

Amherstburg Police Services Board, Raymond Marentette and Bartolomeo Dipasquale

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: September 30, 2008

Citation: 2008 HRTO 119

Indexed as: Saxon v. Amherstburg (Police Services Board)

Human Rights Tribunal of Ontario 655 Bay Street, 14th Floor Toronto, ON M7A 2A3 Phone (416) 314-8419 / Fax (416) 314-8743 / Toll free 1-866-598-0322 TTY (416) 314-2379 / (toll free) 1-800-424-1168 E-mail hrto.registrar-transition@ontario.ca Website www.hrto.ca

1This is an application received September 11, 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 September 19, 2008.

2By letter dated September 15, 2008, the Tribunal acknowledged receipt of the Application and advised the applicant that it was unable to process the Application because it was lacking certain information. The respondents were notified of the receipt of the Application at the same time. On September 22, 2008 the applicant provided the missing information.

3Based on documents submitted by the respondents, it appears to the Tribunal that:

• The Commission made a decision on May 27, 2008 deciding not to refer the complaint to the Tribunal under section 36(2) of the Code. The date this decision was mailed is not evident.
• On June 10, 2008, the applicant’s representative, who is also his spouse, requested an extension of time for filing an application for reconsideration on the basis that:

(she has) a severe disability that causes me to have a great deal of fatigue. Therefore, it is impossible for me to meet the current deadline. I estimate that it would take me an additional three weeks beyond the June 16 deadline for me to complete.

• On June 12, 2008 the Commission advised the respondents of the request for an extension and advised them that the request for an extension would be placed before the Commission for decision.
• On August 27, 2008 the Commission allowed the complainant’s request for an extension of time to file the application for reconsideration. The time was extended to within 30 calendar days of the mailing date of the Commission’s decision granting the extension. The mailing date of the decision granting the extension is not evident.

4In their response, the respondents allege that “the actions of the representative of the complainant constitute an abuse of process. By abandoning the request for reconsideration, this complaint has been finally dealt with and the file should be closed.” In essence, the respondents’ argument is that the Commission had investigated, considered and decided not to refer the complaint to the Tribunal. Therefore, the Commission has made a final decision, this is not a complaint that is “continued” under section 53(3) of the Code and it would be an abuse of the Tribunal’s process to deal with this Application.

5Prior to its repeal, section 37 of Part IV of the Code 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.”

6Section 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.

7In order to deal with the respondents’ issue, 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 respondents and file with the Tribunal a copy of:

1. The letter from the Commission enclosing the Commission’s decision dismissing the applicant’s complaint;
2. Any correspondence from the Commission in relation to the request for reconsideration, not already provided in the respondents’ response;
3. Any correspondence from the applicant to the Commission, not already provided in the respondents’ response subject to any claims of privilege;
4. The letter from the Commission enclosing the Commission’s decision granting an extension to file a request for reconsideration.

b. Within 20 days of receipt of the information identified in paragraph a. above, the respondents 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 other documents relevant to their position.

c. Within 20 days of receipt of the respondents’ submissions identified in paragraph b. above, the applicant shall deliver to the respondents and file with the Tribunal any reply submissions.

8Upon receipt of the submissions, the Tribunal will issue further directions if required.