Xiumin Zhang v. Centennial College, 2009 HRTO 1191

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Xiumin Zhang

Applicant

-and-

Centennial College, Lisa Robinson and Jacqueline Longaphie

Respondents

DECISION

Adjudicator: David Muir

Date: August 4, 2009

Citation: 2009 HRTO 1191

Indexed as: Zhang v. Centennial College

1This is an Application filed January 20^th 2009 under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying complaint was filed with the Ontario Human Rights Commission (“Commission”) on September 5, 2007.

2This Decision deals with the issue of whether the complaint was continued when the applicant purported to transfer it to the Tribunal. The Decision is based upon the written submissions filed by the parties. There is no dispute about the material facts.

3The 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 Commission on December 12, 2007 and the applicant did not file a timely request for reconsideration. The applicant made a request for reconsideration on December 22, 2008. The Human Rights Commission acknowledged receipt of the applicant’s request but declined to consider it on the basis that it was filed well outside of the 15 day time limit for the filing of such requests.

4The applicant alleges that she had moved and was unaware of the decision of the Human Rights Commission until November 2008. If accurate that is unfortunate, however it remains that the request for reconsideration was found by the Human Rights Commission to be untimely. Until and unless the Commission granted an extension to file the request for reconsideration outside the statutory deadline, the Commission had no authority to deal with the request for reconsideration. The Commission never granted the extension and therefore the complaint was not “continued” within the meaning of section 53 of the Code which provides:

(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).

5I find that the complaint forming the subject matter of this Application was not a continued complaint when the applicant purported to transfer it to the Tribunal. It was not a continued complaint because the Human Rights Commission had disposed of it in December 2007. That decision was not reconsidered.

6I find that this Application is not within the jurisdiction of the Tribunal.