McCombs v. Metroland Media Group, 2009 HRTO 1131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen McCombs

Applicant

-and-

Metroland Media Group Ltd., Tania Gordon, David Bos, Alan Beech, Tracy Travis-Scott and Sandy Orr

Respondents

AND B E T W E E N:

Deborah Palermo

Applicant

-and-

Metroland Media Group Ltd., Tania Gordon, David Bos, Alan Beech, Tracy Travis-Scott and Sandy Orr

Respondents

DECISION

Adjudicator: Mark Hart

Date: July 24, 2009

Citation: 2009 HRTO 1131

Indexed as: McCombs v. Metroland Media Group

1These are two Applications, both dated December 18, 2008 and made under section 53(3) of Part VI of the Human Rights Code, R.S.O 1990, c. H.19, as amended (the “Code”), against the same respondents. The Applications each attached a self-drafted Human Rights Complaint Form, both dated June 10, 2008.

2On January 21, 2009, the respondents objected to both Applications being filed under the transitional process on the basis that the underlying complaints had not been properly filed with the Commission.

3On June 8, 2009, the Tribunal sent correspondence to the parties and to the Commission asking the Commission to advise whether the complaints attached to the Applications had been filed with the Commission prior to June 30, 2008 and, if so, what the status of these complaints was at the time the Applications were filed in December 2008. The applicants were directed to make submissions to the Tribunal within 20 days of receipt of this information from the Commission and the respondents were to file any reply submissions within a further 10 days. The parties were advised that the Tribunal may determine this jurisdictional issue on the basis of the written submissions.

4On June 16, 2009, the Tribunal received correspondence from the Commission stating that the complaints that accompanied the Applications were not filed with the Commission. The Commission’s records indicate that it received the completed complaint forms on June 17, 2008. On July 17, 2008, the Commission wrote to the applicants to indicate that the Commission was unlikely to be able to deal with their complaints and to advise them to file applications directly with the Tribunal and noted that the applicants had elected to do so. The Commission then closed its file with a status of “withdrawn”. No formal complaints were filed or served on the respondents.

5As of July 14, 2009, some 28 days after the Commission’s letter, no submissions had been filed by the applicants. On that day, the respondents wrote to the Tribunal to confirm that no submissions from the applicants had been received, and took the position that the applicants had not disputed the information provided by the Commission. Accordingly, the respondents repeated their position that the complaints had not been filed with the Commission, and accordingly that the Tribunal has no jurisdiction to deal with these matters as transitional applications. As of the date of this decision, the Tribunal still has not received any submissions from the applicants.

6As of June 30, 2008, the system for enforcing rights under the Code has been significantly amended. Before, individual complaints were only heard by the Tribunal if the Commission decided to refer them for a hearing. Now, applicants may file their claims (now called applications) directly with the Tribunal.

7The transition provisions of the amended Code address the situation of applicants who had filed complaints with the Commission prior to the effective date of the new provisions, June 30, 2008.

8The following transition provisions are relevant to this decision:

53. (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.

9Essentially, from the effective date (June 30, 2008) until the expiration of the six month period (December 31, 2008), the Commission could continue to deal with a complaint filed prior to June 30, 2008. For example, the Commission could initiate an investigation, attempt to settle a complaint or refer a complaint to the Commissioners under section 34 or 36 of the old Code. A person who filed a complaint prior to June 30, 2008 that is continued at the Commission could choose to leave their complaint at the Commission until December 31, 2008 or elect to abandon their complaint and file a section 53(3) application with the Tribunal with respect to subject matter of the complaint.

10The issue in this case is whether the applicants had a continued complaint before the Commission in December 2008 when they filed their section 53(3) Applications. In my view they did not.

11In this case, while the Commission had received self-drafted complaints from the applicants prior to June 30, 2008, it did not treat these complaints as having formally been filed, did not serve them on the respondents, and expressly advised the applicants that it would not be dealing with their complaints and that they should file applications directly with the Tribunal. The Commission thereupon closed its file on July 21, 2008.

12Accordingly, as of the time the applicants filed their Applications in December 2008, they had not “filed” complaints with the Commission within the meaning of s. 53(1) of the Code and, in any event, did not have complaints that “continued” at the Commission within the meaning of ss. 53(2) and (3) of the Code.

13As a result, the Tribunal has no jurisdiction over these Applications. The Applications are accordingly dismissed.

14This Decision only relates to the applicants’ ability to file an application under the transitional provisions of the Code, and in no way affects their ability to file a fresh application with the Tribunal pursuant to s. 34(1) of the Code, provided the other requirements of that section have been met.