der von Felix v. Ontario (Attorney General), 2009 HRTO 1351

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Harry der von Felix

Applicant

-and-

The Queen in right of Ontario as represented by the Ministry of the Attorney General and Paul Tait

Respondents

AND B E T W E E N:

Hans Harry der von Felix

Applicant

-and-

The Regional Municipality of York Police Services Board and Adam Daviduke

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: August 28, 2009

Citation: 2009 HRTO 1351

Indexed as: der von Felix v. Ontario (Attorney General)

Introduction

1These Applications were filed December 12, 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 Tribunal sought information and submissions from the parties and the Ontario Human Rights Commission (the “Commission”) on the status of the underlying complaints at the Commission. Neither party provided written submissions.

3The Commission responded advising that, in its view, the complaints had not been filed with the Commission. The Commission’s records indicate that the Commission received two completed complaint forms from the applicant on June 4, 2008. On December 1, 2008, the Commission wrote to the applicant advising, 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.

4The 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)

(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.

5I find that although the applicant submitted a complaint form to the Commission prior to June 30, 2008, in the circumstances as described above, the complaint was not “filed” with the Commission within the meaning of section 53(1).

6Accordingly, the applicant may not file the present Application under section 53(3) of the Code and the Application is dismissed.

7Nothing in this Decision precludes the applicant from seeking to file an application under section 34 of the Code in the Tribunal’s new applications stream, using Form 1, the form applicable for Applications under s. 34 of the Code. The applicant may wish to consult the Applicant’s Guide, available on the Tribunal’s website or from the Registrar’s office. Pages 2 – 3 of the Guide set out sources of assistance that may be available to him.