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: December 10, 2008

Citation: 2008 HRTO 383

Indexed as: Zavadsky v. Ontario (Education)

INTRODUCTION

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”).

2The respondent argues that the Tribunal does not have jurisdiction to deal with this Application because the complaint upon which the Application is based was dismissed by the Ontario Human Rights Commission (the “Commission”) on May 27, 2008, and therefore it is not a complaint which is “continued” under the transition provisions of the Code. The applicant argues that he filed a request for reconsideration to the Commission, which had the effect of continuing the complaint. The applicant submits that he was entitled to abandon the continued complaint and file an application under section 53(3) of the Code with the Tribunal.

3This decision determines the jurisdictional challenge raised by the respondents.

Request For Publication Ban

4In his submissions, Mr. Zavadsky (who is identified as the “litigation guardian” for his son, the applicant) requests that the Tribunal order a publication ban or identify the applicant by initials only. The respondents submit that this issue ought to be dealt with by the panel who may be required to hear this Application, but does not object to the use of initials as a temporary measure to protect the privacy interests of the applicant.

5The difficulty I have with Mr. Zavadsky’s request is that it is being made after the Tribunal has already issued a previous decision listing the full name of the applicant. This decision refers to the previous decision. Without an order amending the previous decision, and making directions to third parties who may have received or accessed the previous decision, it would not be possible to achieve the privacy protections that Mr. Zavadsky is now seeking. Issuing full or partial publication bans of decisions is an extraordinary measure in judicial or quasi-judicial proceedings. I am not prepared to make such an order without full submissions and a careful consideration of the circumstances of this case.

6I will however refrain from including personal information related to the applicant in this decision unless it is necessary to the determination of the issues at hand. The Tribunal’s practice in drafting decisions is to refer only to those facts that are necessary to explain the reasons for the decision. This is because, particularly in human rights claims, there may be personal or sensitive information which, if made public, may be embarrassing or cause harm to either or both of the parties involved. I will make every effort to be sensitive to Mr. Zavadsky’s concerns.

DECISION

7The Tribunal’s September 24, 2008 decision (2008 HRTO 102), sought submissions from the parties on the jurisdictional issue raised by the respondent. In large part, the respondent’s original challenge to this Application turned on timing: when the Commission dismissed the complaint, when notice of that decision was sent to the parties, and when the request for reconsideration was filed with the Commission. As I noted in the September 24, 2008 decision, there was not enough information before the Tribunal to make a determination on the respondent’s challenge.

8The applicant filed submissions on September 28, 2008. The respondent filed a response on October 20, 2008. The applicant filed reply submissions on November 9, 2008. Based on the documents provided by the parties, there is no dispute about when certain steps were taken in relation to the complaint before the Commission.

9The first question raised in determining the Tribunal’s jurisdiction to entertain this Application is whether the request for reconsideration made to the Commission was timely. Section 37 of the old 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.” The applicant provided the letter from the Commission dismissing his complaint. That letter is dated June 2, 2008. The applicant also provided the request for reconsideration which is dated June 15, 2008. The respondent does not challenge either of these two documents.

10Therefore it is clear that the request for reconsideration was filed within the time provided by section 37 of the old Part IV of the Code. There is no need to consider whether the Commission granted an extension to file the request.

11The next question is whether the complaint has been “continued” under the transition provisions of the Code, such that section 53(3) is available to the applicant, notwithstanding the Commission dismissed the complaint. Put another way, does a timely request for reconsideration have the effect of continuing a complaint that has been dismissed by the Commission, and permit the complainant to abandon that complaint and effectively transfer the complaint to the Tribunal under section 53(3). In my view, based on a plain reading of the transition provisions, the answer is that it does.

12The relevant portions of sections 53 of the Code provide:

(1) This section applies to a complaint filed with the Commission under subsection 32 (1) of the old Part IV or initiated by the Commission under subsection 32 (2) of the old Part IV before the effective date.

(2) Subject to subsection (3) and despite the repeal of the old Part IV, during the six-month period that begins on the effective date, the Commission shall continue to deal with complaints referred to in subsection (1) in accordance with subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV and, for that purpose,

(a) the Commission has all the powers described in subsection 32 (3) and sections 33, 34, 36, 37 and 43 of the old Part IV; and,

(b) the provisions referred to in clause (a) continue to apply with respect to the complaints, with necessary modifications.

(3) 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. (emphasis added)

13June 30, 2008 was the effective date of the new Code. Section 53(2) continues the Commission’s power to reconsider complaints under section 37 of the old Code, and indeed requires it to do so during the six month period ending December 31, 2008. Therefore, where a timely request for reconsideration is filed in respect of a complaint that was dismissed by the Commission, that complaint is “continued” – it remains an active complaint before the Commission.

14The respondent concedes that the reconsideration request was timely, but makes two arguments why the Tribunal does not have jurisdiction to deal with this Application. First, it argues that the filing of the section 53(3) Application had the effect of terminating the Commission’s powers under section 53(2) and therefore the complaint was no longer “continued.” It submits that when, pursuant to section 53(3), an individual “abandons” their complaint in order to file an application to the Tribunal, the act of abandoning the complaint terminates the Commission’s powers. At that point, says the respondent, the complaint is no longer “continued.”

15I cannot accept the respondent’s submission. The plain language and intent of section 53(3) is to allow an individual whose complaint is still active before the Commission, to abandon their complaint and transfer the matter to the Tribunal. The Legislature could have decided that the Commission’s powers of reconsideration were not continued beyond the effective date. It did not. Instead to chose to provide a transitional scheme whereby any complaint in which the Commission maintained the authority to consider whether a referral to the Tribunal was appropriate, could be the subject of an application under section 53(2).

16The respondent further argues that a review of the grounds for reconsideration submitted to the Commission shows that the request was in effect a new complaint or proceeding, not a true reconsideration. The respondent submits that the applicant’s “…request for reconsideration did not raise a clerical error, an ambiguity or an issue the Commission failed to deal with; instead Mr. Zavadsky’s request raised new issues and arguments.”

17There is nothing in the language of section 37 of the old Code which specifically limits the grounds of reconsideration to “a clerical error, an ambiguity or an issue the Commission failed to deal with.” This is not to say that the Commission’s power of reconsideration should be, or would be exercised in any particular way. The Tribunal has always taken the view (which has been supported by the Courts) that it does not have supervisory authority over the Commission’s statutory decision making powers. I note only that there is no statutory definition of the grounds for reconsideration under the old section 37.

18In any event, the request for reconsideration filed by the applicant did claim a number of errors in the Commission’s decision not to refer the complaint to the Tribunal. It is true that the request seeks to amend the original complaint. But the request for reconsideration also sets out a number of reasons why the applicant believes the Commission’s analysis and decision were wrong. I am not prepared to find that the applicant’s request for reconsideration is such that it cannot be considered a request within the meaning of section 37 of the old Part IV of the Code.

19For the foregoing reasons, I find that this Application is within the Tribunal’s jurisdiction insofar as section 53(3) is available to the applicant in the circumstances.

20Nothing in this decision should be taken to mean the Tribunal has decided other issues raised by the respondent in its submissions to the Tribunal and in its response and submissions to the original complaint before the Commission. In particular, the respondent argues that the applicant is improperly seeking to amend the original complaint. Also, the respondent claims that the issues raised in this Application were fully and finally dealt with by the Court of Appeal in Wynberg v. Her Majesty the Queen in Right of Ontario (“Wynberg”) 2006 CanLII 22919 (ON CA), [2006] O.J. No. 2732 leave ref’d [2006] S.C.C.A. No. 441. .

21These are significant threshold issues which ought to be determined at the outset of these proceedings. As a result, the Tribunal makes the following order:

a. The respondent shall set out in writing any and all preliminary issues it wishes to raise in respect of this Application. It is not required to provide legal argument in support of its position. Its submission must be delivered to the applicant and filed with the Tribunal no later than December 22, 2008.

b. No later than January 12, 2009 the applicant shall deliver to the respondent and file with the Tribunal his position on each issue. The applicant is required to identify any preliminary issue he may wish to raise. He shall not be required to provide legal argument in support of his position on the respondent’s challenges or any issue which he may seek to raise.

c. Once the statement of issues are submitted by the parties, the Tribunal will set a date for the hearing of those issues, and will provide a timeline for the exchange of documents, submissions and other materials as appropriate.

d. In addition to any issue the parties may wish to raise, the parties are advised that at the hearing the Tribunal will require the parties address the following issues:

1. Whether the applicant is entitled, or should be permitted to amend the original complaint to deal with the issues identified in the request for reconsideration filed with the Commission on June 15, 2008. The parties should have regard to the Tribunal’s Rules for Applications under Section 53(3).

2. Whether the issues raised in this Application have been dealt with and decided by the Court of Appeal in Wynberg, and if so, what is the effect of that decision on the Tribunal’s proceedings.

3. Does the Ministry have any liability for the alleged failure to provide special education services in light of the Tribunal’s decisions in Sigrist and Carson v. London District Catholic School Board (2008 HRTO 14) and Davidson v. Lambton Kent District School Board, (2008 HRTO 294)..