Saxon v. Amherstburg Police Services Board, 2008 HRTO 395

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: December 15, 2008

Citation: 2008 HRTO 395

Indexed as: Saxon v. Amherstburg Police Services Board

Introduction

1This is an Application filed 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”).

2The respondents argue 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. In the alternative, the respondents argued that it would be an abuse of the Tribunal’s process to permit the applicant to proceed with the Application. 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.

Decision

Jurisdiction over this Application

Is the request for reconsideration timely?

3The 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.”

4The Commission letter advising the applicant that his complaint had been dismissed was dated June 2, 2008. On June 10, 2008 the applicant’s representative, who is also his wife, requested an extension of time for filing an application for reconsideration on the basis of her disability that causes her to have a great deal of fatigue. She estimated that she required an additional three weeks beyond the June 16, 2008 deadline to complete the request for reconsideration.

5On June 12, 2008 the Commission acknowledged the request for an extension, and advised that only the Commissioners could grant an extension for “special reasons.” The Commission advised that the request for an extension would be put before the Commissioners. The letter invited the applicant to submit the reconsideration request, while awaiting the Commissioner’s decision, and advised that if an extension was granted, “the case will proceed through the standard reconsideration process.”

6Also on June 12, 2008 the Commission advised the respondents of the applicant’s request for an extension of time for filing a request for reconsideration and invited the respondents to make submissions on the request for an extension.

7The applicant did file the request for reconsideration on July 20, 2008.

8On August 27, 2008, the Commissioners granted the applicant’s request for an extension to file the request for reconsideration until 30 days from the date of the Commission decision. The parties were advised of this decision by letter dated September 4, 2008.

9The Commission, having extended the date for filing an extension until September 27, 2008 and the applicant having filed the request on July 20, 2008 the request for reconsideration was timely within the meaning of section 37 of the old Code.

Can the applicant abandon a complaint that is under reconsideration?

10The respondents submitted that a dismissed complaint, which has not been reconsidered, cannot be “referred” to the Tribunal. I agree that until the Commission had issued a reconsideration decision referring the complaint the Tribunal, it cannot be considered a referred complaint within the meaning of section 38. However, the applicant is not seeking to have the complaint “referred” to the Tribunal. The applicant chose to abandon a complaint which was within the Commission’s reconsideration process, and file a section 53(3) application.

11The 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.

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.” In the words of the Commission’s June 12, 2008 letter “the case will proceed through the standard reconsideration process.”

14For the foregoing reasons, I find that this Application is within the Tribunal’s jurisdiction.

Abuse of Process

15The respondents submitted that, in light of the Commission’s decision to dismiss the complaint, the applicant’s effort to “re-argue” the matter again is an abuse of process. I do not agree.

16The Legislature could have decided that the complaints dismissed under section 36 or 34 of the Code were not “continued” complaints. 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).

Next Steps

17The Rules Governing Section 53(3) Applications contemplate that the first step in processing section 53(3) applications is mediation. The parties are directed to advise the Registrar-Transition, within ten days of the date of this decision, of their availability to attend mediation in February 2009.