Kalevi Lomakin v. City of Mississauga, 2008 HRTO 237

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kalevi Lomakin

Applicant

-and-

City of Mississauga

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 6, 2008

Citation: 2008 HRTO 237

Indexed as: Lomakin v. Mississauga (City)

Human Rights Tribunal of Ontario

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Toronto, ON M7A 2A3

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E-mail hrto.registrar-transition@ontario.ca

Website www.hrto.ca

1This is an Application filed September 18, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Mediation has been scheduled for January 9, 2009.

3The respondent has not yet submitted a Response (Form B). The respondent takes the position that the complaint which forms the basis of the present Application was not filed with the Ontario Human Rights Commission (“Commission”) and therefore the complaint cannot form the subject of a section 53(3) application. In particular the respondent asserts that although the Commission provided the applicant with a complaint form with an assigned file number, it appears that the applicant did not return his completed complaint form to the Commission.

4It appears to the Tribunal that there may be an issue whether the complaint which underlies the present Application was “filed” and is a “continued” complaint within the meaning of the Code. I draw the parties’ attention to a previous decision of the Tribunal considering this issue: Guzina v. Ontario (Environment) 2008 HRTO 57. If the applicant does not meet the requirements of section 53(3), it may be open to proceed under section 34 of Part IV of the Code.

5Section 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.

6The Tribunal requires additional information and submissions from the parties on this issue. It also appears to the Tribunal that the Commission may have useful information to provide in this matter. Therefore, the Tribunal makes the following order:

• Within 20 days of the receipt of this decision, the respondent shall file its Response.

• Within 20 days of this decision, the applicant shall deliver to the respondent and file with the Tribunal a copy of any correspondence to and from the Commission relating to the Commission’s file number JART-7BH23M.

• The Registrar-Transition shall provide a copy of this decision and the parties’ contact information to the Commission. Within 20 days of the date of this decision, the Commission shall provide advise the Tribunal of the status of the Commission complaint JART-7BH23M and may, if it wishes, provide written submissions on whether Commission complaint JART-7BH23M is a continued complaint within the meaning of section 53(3) of the Code.

• Within 20 days of receipt of the information identified in the paragraph above, the respondent shall deliver to the applicant and the Commission, if they have chosen to file written submissions, 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.

• Within 20 days of receipt of the respondent’s submissions identified the applicant and the Commission may deliver any reply submissions to the respondent and file them with the Tribunal.

7Upon receipt of the written submissions the Tribunal will advise whether it will hear oral submissions from the parties on any of the above issues. The oral submissions, if required, will be heard on January 9, 2009 (the date previously agreed to by the parties for mediation) unless any party advises they are unavailable on that date. The parties are required to hold that date until further notice.