Malkowski v. Ontario (Municipal Affairs and Housing), 2008 HRTO 402

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Malkowski

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing

Respondent

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: December 16, 2008

Citation: 2008 HRTO 402

Indexed as: Malkowski v. Ontario (Municipal Affairs and Housing)

1This is an Application filed August 20, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2A mediation has been scheduled for January 13, 2009.

3The respondent filed its Response on December 11, 2008. The respondent takes the position the Ontario Human Rights Commission dismissed the complaint which forms the basis of the present Application on March 11, 2008 and advised the applicant he could file a new complaint against other persons. The respondent also asserts that, although the applicant filed a request for reconsideration, he agreed with the Commission's decision to dismiss the complaint but disagreed with the Commission's suggestion to file another complaint. In these circumstances, the respondent asserts the complaint which forms the subject-matter of this Application is not continued within the meaning of the Code.

4Section 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.

5The Tribunal requires additional information and submissions from the parties on this issue. Therefore, the Tribunal makes the following order:

• The mediation scheduled for January 13, 2009 is cancelled;
• Within 20 days of the date of this decision, the respondent shall deliver to the applicant and file with the Tribunal submissions in support of its position that the Tribunal does not have the jurisdiction to deal with this Application because it not a continued complaint. The respondent should at the same time provide any documents or case law relevant to its position;
• Within 20 days of receipt of the respondent's submissions the applicant may deliver any submissions, documents and case law in response to the respondent and file them with the Tribunal; and,
• Within 10 days of receipt of the applicant's submission, the respondent may deliver any submissions in reply to the applicant and file them with the Tribunal.

6The Tribunal may decide the jurisdictional question on the basis of the written submissions.

7If oral submissions are required the Tribunal will contact the parties to schedule a date to hear oral submissions.