Patterson v. Somebuddy’s Restaurant and Eatery, 2008 HRTO 160

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jennifer Patterson

Applicant

-and-

Somebuddy’s Restaurant and Eatery,

Anthony Vacca, Nick Vacca and Francis Vacca

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: October 15, 2008

Citation: 2008 HRTO 160

Indexed as: Patterson v. Somebuddy’s Restaurant and Eatery

Human Rights Tribunal of Ontario

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Toronto ON M7A 2A3

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INTRODUCTION

1This is an Application filed August 6, 2008 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). By interim decision on September 8 (see 2008 HRTO 71) the Tribunal asked the parties to make submissions on a preliminary issue raised by the Application. This is the Tribunal’s decision on the preliminary issue.

2In her response to Question 13 on the application form, the applicant indicated that a complaint based on the same facts was previously filed with the Ontario Human Rights Commission (the “Commission”). That complaint, which was provided by the applicant, is dated April 18, 2008. The applicant also provided a copy of a letter dated June 5, 2008 from the Commission stating (among other things) that the file before the Commission has been closed, on the basis of the applicant’s decision to withdraw her complaint.

3Based on this material, the Tribunal sought submissions from the parties on whether section 53(8) of the Code was a bar to this Application. That section states:

No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

4The Tribunal also directed the Commission to file a statement of facts providing information about the date when the complaint was filed with the Commission, communications between the applicant and the Commission, communications between the respondents and the Commission and any other facts related to the processing of the complaint by the Commission and its apparent withdrawal (subject to mediation privilege).

5The Applicant has provided submissions, and the Commission has provided a statement of facts. The Tribunal has not received submissions from the respondents.

THE FACTS

6The Tribunal accepts the facts as stated by the applicant and the Commission about the processing of her complaint before the Commission. The applicant’s recitation of the facts is consistent with that of the Commission.

7The Commission states that starting in October 2004, the Commission moved from a Commission-drafted to a complainant self-drafted complaints process. Potential complainants were forwarded complaint forms by the Commission to complete and return. If a completed complaint form was returned to the Commission, it was assigned to intake staff for assessment. Staff of the Commission would assess the completed form for accuracy and completeness before the Commission accepted it for the purposes of considering its merits. Only upon this acceptance would the Commission treat a complaint as having been “filed” for the purposes of the Code.

8The applicant sent her self-drafted complaint to the Commission on April 18, 2008. On June 5, 2008, an Intake Officer with the Commission contacted her. At this point, although the Commission had accepted her complaint form and assigned it a file number, it had not yet assessed her complaint for completeness. The Commission had not formally accepted it as “filed”, and had not served it on any potential respondents. In the conversation with the applicant, the Intake Officer recommended that her file be closed and that the applicant file a complaint directly with the Tribunal upon the effective date of the amendments to the Code (June 30, 2008). The applicant agreed.

9As a result, the Commission sent the applicant a letter confirming the conversation, which states in its entirety:

This letter is further to our recent telephone conversation. As discussed, Ontario’s human rights system is changing on June 30, 2008. From that date the Ontario Human Rights Commission will no longer be accepting individual complaints of discrimination. If you file a complaint with the Commission now, it is unlikely that we will deal with your complaint before changes to the system are complete.

The file you initiated with the Ontario Human Rights Commission has been closed as requested. You decided to withdraw your complaint and wait to file a complaint directly with the Human Rights Tribunal of Ontario after June 30, 2008. Please note that as of June 30, 2008, there will be a one-year time limit [from the date of last incident of discrimination] to file a complaint with the Human Rights Tribunal of Ontario.

More information is available from the Tribunal’s website at www.hrto.ca. After June 30, 2008 you will be able to get an application and an applicants guide from the Tribunal. Advice on how to make an application will also be available from the new Human Rights Legal Support Centre after June 30.

Thank you for inquiring into filing a complaint under the Ontario Human Rights Code.

10On August 5, 2008, the applicant sent the Tribunal an Application based on the same events as those set out in the complaint of April 5, 2008.

DECISION

11As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Commission decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal.

12The provisions of the amended Code set out new procedures and rules regarding the enforcement of Code rights through the Tribunal. They also deal with a number of transition issues, which are always present in a changeover to a new legal regime.

13Section 53(8) is found among the transition provisions of the Code. The effect of section 53(8) is that an applicant may not file an application to the Tribunal under section 34 of the Code if it is based on the same or substantially same subject-matter as a complaint previously filed with the Commission. Although section 53(8) speaks of complaints “filed” with the Commission, the Code does not define what is meant by “filed”.

14The Commission states that in fact, the applicant did not “file” a complaint with the Commission. It did not consider the applicant’s complaint as having been filed, as it had not completed the usual assessment process necessary before the Commission treats a complaint as “filed”. Under the Commission’s process, a complaint is not formally filed with the Commission simply because an individual has sent a completed complaint form to the Commission.

15The question before the Tribunal is therefore whether it should treat the applicant’s complaint as having been “filed”, despite the Commission’s own treatment and categorization of it.

16I see no reason to do so. Nothing in the transition provisions or any other part of the Code suggests that section 53(8) must apply to a complaint that the Commission’s own processes do not treat as having been filed. The language of section 53(8) does not require such a result. The plain meaning does not require that “filed” be read to include a complaint that has been delivered to the Commission and assigned a file number but not otherwise processed.

17The meaning given to section 53(8) must have reference to the Commission’s practices and processes. I accept as a fact that under the Commission’s processes, the applicant had not yet filed a complaint. The Commission’s view is consistent with the applicant’s understanding of the status of her complaint, and the letter from the Commission of June 5, 2008, confirms this understanding. Although it refers at one point to the applicant having “decided to withdraw your complaint”, the rest of the letter is consistent with the notion that the applicant had made inquiries about filing a complaint, but a complaint had not yet been filed.

18Further, I can discern no policy reason why section 53(8) should be interpreted to cover a complaint that the Commission has not categorized as having been “filed”. Applying section 53(8) to the facts of this application could result in preventing the applicant from advancing her claim of discrimination before the Tribunal, despite the absence of any steps before the Commission beyond the mere acceptance of a completed form and assignment of a file number. It is reasonable to view the intent of the transition provisions as the provision of an orderly and rational changeover from one legal regime for the enforcement of Code rights to another. If this is the case, I cannot see how this purpose would be served by barring this Application, based on these facts.

19This Tribunal, as well as the courts, have recognized the importance of applying human rights legislation in a broad and purposive manner. On the material before me, I see no purpose to be served under the Code by barring the present Application, and no reason to interpret section 53(8) to lead to such a result.

20In view of my finding that the applicant did not “file” a complaint to the Commission within the meaning of section 53(8), it is unnecessary to deal with her submission that the Tribunal should deem her Application to have been filed under section 53(3) of the Code.

21The respondents have been served with the Application. Responses in Form 2 must be filed with the Tribunal no later than 35 days after this decision. The respondents are referred to the Tribunal’s Rules of Procedure, found on the Tribunal’s website, setting out the requirements for a Response.