Kaikhushroo Firozi v. Ontario Lottery and Gaming Corporation, 2008 HRTO 292

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaikhushroo Firozi

Applicant

-and-

Ontario Lottery and Gaming Corporation, Bob Stenton,

Donnel Asper and Lansha Leung

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: November 21, 2008

Citation: 2008 HRTO 292

Indexed as: Firozi v. Ontario (Lottery and Gaming Corporation)

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 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”). On October 9, 2008, the Tribunal scheduled a mediation for November 20, 2008. The Tribunal’s Notice of Mediation specifically directed the parties to advise the Tribunal within 10 days of October 9, 2008, if they were not available on the date scheduled.

2On November 17, 2008, one month and eight days after the Notice of Mediation was sent, and less than three days before the scheduled mediation, counsel for the corporate respondent, Lansha Leung and Donnel Asper wrote the Tribunal refusing to attend the mediation because they had allegedly not received the Application. Counsel also advised that the respondent Bob Stenton no longer works for the corporate respondent and therefore may not have received the Application.

3In light of the respondents’ announced intention not to attend, the mediation scheduled for November 20, 2008 was cancelled.

Service and Notice to Bob Stenton

4Based on the information provided by counsel for the corporate respondent, the Tribunal is not satisfied that the personal respondent, Bob Stenton, has been served with the Application.

5The corporate respondent is ordered, within 10 days of the date of this decision, to provide the last known contact information for the personal respondent, Bob Stenton, to the Tribunal and the applicant.

6If the applicant wishes to continue the Application against Bob Stenton, the Application must be served on him, at the address provided by the corporate respondent in accordance with paragraph 5 or the applicant may withdraw the Application as against Mr. Stenton. The applicant must file the Statement of Delivery (Form C) or a letter confirming the Application against Bob Stenton is withdrawn within 10 days of receiving the contact information from the corporate respondent.

7Any reference to the “respondents” in the remainder of this decision does not include Mr. Stenton.

Delivery of the Application to the Remaining Respondents

8An applicant is required to deliver the Application and the underlying Commission complaint to each respondent and file it, together with a Statement of Delivery on each respondent with the Tribunal. The applicant filed four Form C’s asserting that the Applications were delivered by Xpress Post to the named respondents at the Ontario Lottery and Gaming Corporation, care of Rick Campbell, Vice President, Human Resources. The mailing address was 4120 Yonge Street, Suite 420, Toronto, Ontario M2P 2B8, which is the corporate address listed on the corporate respondent’s website.

9The Tribunal’s Notice of Confirmation of Receipt of an Application and Notice of Mediation was sent, by courier, on October 9, 2008 to the same address. The courier company did not report any inability to deliver the package, nor was the material returned.

10The Tribunal notes that although the respondents deny receiving the Application, they do not deny receiving the Tribunal’s Notices. Thus, it is troubling that the respondents did not communicate their intention not to attend the mediation or advise that the Application had not been delivered to the Tribunal until November 17, 2008. The Tribunal’s notices make clear a legal proceeding has been commenced and that consequences for failure to response may follow. Respondents are expected to respond promptly to official Notices issued by the Tribunal.

11The Tribunal is faced with the situation where the applicant alleges that the Application was delivered, in accordance with the Tribunal Rules, and the respondents allege that they did not receive the Application. It is over two months since the applicant filed the Application with the Tribunal and over six years since the events set out in the underlying complaint occurred. I find that the most expeditious way to proceed is to enclose a copy of the Application (Form A) and the underlying complaint with this decision.

12The respondents are ordered to provide their Response (Form B) in accordance with the directions set out below.

Is it a Continued Complaint?

13In their letter of November 17, 2008 the respondents asserted that the Ontario Human Rights Commission (“Commission”) issued a decision dismissing the complaint on November 28, 2006, that the applicant applied for reconsideration on August 11, 2008 (20 months after the Commission decision) and then apparently abandoned the complaint at the Commission to file the present Application on September 18, 2008.

14It appears to the Tribunal that there is an issue whether the complaint which forms the subject-matter of this Application is continued within the meaning of the Code.

15Section 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.

16The Tribunal requires additional information and submissions from the parties on this issue. Therefore, the Tribunal makes the following order:

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

1. The Commission decision on File # TSAE-4ZSKM8 dated November 28, 2006.

2. Any correspondence to and from the Commission in relation to any request for reconsideration.

• Within 20 days of receipt of the information identified in the bullet point above, the respondents shall deliver to the applicant and file with the Tribunal its Response (Form B) and its submissions on the issue whether the Tribunal has the jurisdiction to deal with this Application. The respondents should at the same time provide any documents relevant to their position.

• Within 10 days of receipt of the respondents’ submissions, the applicant may deliver any reply submissions to the respondents and file them with the Tribunal.

17Upon receipt of the written submissions the Tribunal will advise whether it will hear oral submissions from the parties. The Tribunal may determine the jurisdiction question on the basis of the written submissions.