Janice Cerra v. Thunder Bay Regional Health Sciences Centre, 2009 HRTO 1229

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janice Cerra

Applicant

-and-

Thunder Bay Regional Health Sciences Centre, Barb Kivinen, Bruce Durdle, Bryson McChesnie and Rhonda Fishbein

Respondents

RECONSIDERATION DECISION

Adjudicator: Kaye Joachim

Date: August 7, 2009

Citation: 2009 HRTO 1229

Indexed as: Cerra v. Thunder Bay Regional Health Sciences Centre

Introduction

1In 2009 HRTO 688, I held that applicant had not filed a complaint with the Ontario Human Rights Commission (the "Commission") prior to June 30, 2008. Accordingly, I dismissed the Application, without prejudice to the applicant's right to file a new Application under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the "Code").

2On June 18, 2009, the respondents filed a Request for reconsideration under section 45.7 of the Code.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

3Rule 25 of the Tribunal's Rules of Procedure for Transitional Applications provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

4The respondents seek reconsideration of my finding that the complaint was not "filed" with the Commission. They submitted the issue of when a complaint is "filed" with the Commission is a matter of general importance and that my finding is inconsistent with the definition of "filing" in the Commission's internal documents and the Tribunal's Rules of Procedure. I note that these latter arguments were raised for the first time on reconsideration. A party will not generally be permitted to raise new arguments which could have been raised at an earlier opportunity. However, in light of the importance of the issue raised, I have considered the respondents' arguments.

Reconsideration Decision

5The Request for reconsideration is denied.

Analysis

6The new Code significantly changed the system of enforcement of human rights in Ontario. The Commission continued to have the authority to accept new complaints of discrimination until June 30, 2008, and continued to have responsibility to deal with the complaints in its system until December 31, 2008. After June 30, 2008, new complaints, now called applications, must be made directly to the Tribunal.

7With respect to the complaints filed with the Commission prior to June 30, 2008, the transitional provisions of the Code set out a process permitting former complainants to abandon their complaints and file a transition application under section 53, if their original complaint was still in process at the Commission. Where the Commission has fully processed the complaint, by settlement, withdrawal, or a final decision, then the subject matter of that complaint may not be brought to the Tribunal under either section 53 or section 34.

8The relevant provisions of section 53 are set out below:

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. (emphasis added)

(5) If, after the end of the six-month period referred to in subsection (2), the Commission has failed to deal with the merits of a complaint continued under that subsection and the complaint has not been withdrawn or settled, the complainant may make an application to the Tribunal with respect to the subject-matter of the complaint within a further six-month period after the end of the earlier six-month period.

(6) The new Part IV applies to an application made under subsections (3) and (5).

(8) No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.

9These transition provisions make clear that an applicant who has "filed" a complaint with the Commission prior to June 30, 2008 may abandon that complaint and file a transitional Application under section 53, so long as the complaint is still continued (i.e., has not been settled, withdrawn or dealt with on the merits). They cannot make a new application to the Tribunal under section 34 with respect to the subject matter of the original filed complaint.

10The respondents relied upon the plain and ordinary dictionary definition of the meaning of word "file" to mean when documents are submitted to and received by the relevant body. The respondents noted that the Tribunal's Rules of Procedure contemplate that a document is considered "filed" when it is received by the Tribunal, and urged the Tribunal to adopt a similar approach to the interpretation of "filed" under section 53 of the Code.

11In this case, the applicant submitted a signed complaint form to the Commission dated May 15, 2008 and the Commission assigned a file number to it. Thus, the respondents argued, the complaint was "filed" with the Commission prior to June 30, 2008.

12In my view, the Tribunal's approach to deeming when materials are filed with it is not determinative of the interpretation of section 53 of the Code and, as will be discussed further below, the meaning of "filed" is far from plain and obvious.

13The Commission appears to have adopted a certain approach with respect to complaints submitted by individuals near or at the June 30, 2008 deadline. Instead of serving the complaint on the respondent, the Commission advised these applicants that since it was unlikely that the Commission would be able to deal with their complaints, they should wait and file applications under section 34 of the Code.

14In this case, the Commission stated that it adopted the following approach:

1. The complaint (....) was not filed with the Ontario Human Rights Commission within the meaning of section 32 of the Code as it existed prior to the being amended by the Human Rights Code Amendment Act, 2006.

2. The Commission's records indicate that the Commission received a completed Complaint Form from the Applicant on or about May 22, 2008.

3. The Commission's records indicate that on July 9, 2008, Commission staff wrote to the Applicant. The letter to the applicant stated, in part:

We have indicated to you that it is unlikely the Commission will be able to deal with your complaint, and have therefore advised you to file an application directly with the Human Rights Tribunal of Ontario (the "Tribunal"). You have accordingly decided to do so. The file you initiated with the Ontario Human Rights Commission has been closed as requested. Please note that effective June 30, 2008, there will be a one-year time limit (from the date of your last incident of discrimination) to file an application with the Tribunal.

4. The Commission closed the matter on July 15, 2008 with the status "withdrawn". No formal complaint was filed or served on the respondent.

15The Commission has taken a similar approach in other cases which came before the Tribunal.

16Thus, when the respondents argued that the complaint was filed with the Commission on May 22, 2008 and subsequently withdrawn by the applicant, they were submitting that the applicant may not file either a section 53 application or a section 34 application with respect to the subject matter of her original complaint.

17The respondents relied upon the Commission's Internal Guide for Processing Complaints which has been posted on the Commission's website for public access since at least July 2007:

When a complaint is considered "Filed" – A complaint is considered "filed" only after the complainant has signed and dated it, and it has been received by the Commission.

18Later in that same publication, the following statement appears:

A complaint is considered filed on the date that a signed complaint is received by the Commission, in a form approved by the Commission....

19The respondents relied upon other Commission publications to similar effect. I accept that the Commission's recent approach, described above, is in conflict with these earlier published statements. It appears to me that the Commission, in anticipation of its changing mandate effective June 30, 2008 adopted a different approach to its published statements, in determining when an application is "filed."

20In any event, the Commission's past or current approach to determining when an application is filed with them under the old sections 32 and 34 of the Code, does not bind me. I am required to interpret the transitional section 53 of the new Code and determine whether the present Application was filed with the Commission prior to June 30, 2008, within the meaning of section 53 of the Code.

21My interpretation is informed by the Commission's statement to the applicant that she could withdraw her complaint form and file an Application with the Tribunal. I adopt and agree with the following passages from Patterson v. Somebuddy's Restaurant and Eatery, 2008 HRTO 160, at paragraphs 16 to 19:

Nothing in the transition provisions or any other part of the Code suggests that section 53(8) must apply to a complaint that the Commission's own processes do not treat as having been filed. The language of section 53(8) does not require such a result. The plain meaning does not require that "filed" be read to include a complaint that has been delivered to the Commission and assigned a file number but not otherwise processed.

The meaning given to section 53(8) must have reference to the Commission's practices and processes. I accept as a fact that under the Commission's processes, the applicant had not yet filed a complaint. The Commission's view is consistent with the applicant's understanding of the status of her complaint, and the letter from the Commission of June 5, 2008, confirms this understanding. Although it refers at one point to the applicant having "decided to withdraw your complaint", the rest of the letter is consistent with the notion that the applicant had made inquiries about filing a complaint, but a complaint had not yet been filed.

Further, I can discern no policy reason why section 53(8) should be interpreted to cover a complaint that the Commission has not categorized as having been "filed". Applying section 53(8) to the facts of this application could result in preventing the applicant from advancing her claim of discrimination before the Tribunal, despite the absence of any steps before the Commission beyond the mere acceptance of a completed form and assignment of a file number. It is reasonable to view the intent of the transition provisions as the provision of an orderly and rational changeover from one legal regime for the enforcement of Code rights to another. If this is the case, I cannot see how this purpose would be served by barring this Application, based on these facts.

This Tribunal, as well as the courts, have recognized the importance of applying human rights legislation in a broad and purposive manner. On the material before me, I see no purpose to be served under the Code by barring the present Application, and no reason to interpret section 53(8) to lead to such a result.

22While the Commission's publications were not specifically referred to in the above decision, I have already noted that the Commission has since altered its approach.

23I find that the applicant did not "file" a complaint with the Commission prior to June 30, 2008 within the meaning of section 53 of the Code.

24The reconsideration Request is dismissed.